Smith v. City of St. Joseph

• Decision Date: 28 February 1870
• Citation: 45 Mo. 449
• Parties: THOMAS R. SMITH AND WIFE, Respondents, v. THE CITY OF ST. JOSEPH, Appellant.
• Court: Missouri Supreme Court

45 Mo. 449

THOMAS R. SMITH AND WIFE, Respondents,

v.THE CITY OF ST. JOSEPH, Appellant.

Supreme Court of Missouri.

February Term, 1870.

Appeal from Fifth District Court.

Grubb, Hall & Oliver, for appellant.

Plaintiffs knew the street mentioned in the petition was dangerous when they entered upon it. They had no right to proceed and take their chances, and, if they were actually injured, look to the city for indemnity. (Harton v. Inhabitants of Ipswich, 12 Cush. 492; Willson and Wife v. City of Charleston, 8 Allen, 188; 3 Allen, 21; Fox v. Town of Glastenburg, 29 Cow. 205; 50 Maine, 222; 51 Maine, 127.)

Woodson, Vineyard, and Young, for respondents.

WAGNER, Judge, delivered the opinion of the court.

Action brought in the Circuit Court of Buchanan county to recover damages against the city of St. Joseph for injuries sustained by Mrs. Smith, one of the plaintiffs, in consequence of falling down an embankment in one of the streets of the city, and which is alleged to have been negligently left in an exposed and dangerous condition. Defendant, in its answer, avers that at the time the accident occurred, the plaintiff was well aware of the dangerous condition of the street, and that there were other streets that she might have traveled in returning from church to her house with safety, and that the injury she received was the result of her own carelessness and negligence. To this answer no reply was filed. The cause was heard before a jury, who awarded the plaintiff damages, upon which judgment was rendered in the Circuit Court and affirmed in the District Court.

It is now insisted by the counsel for the appellant that the facts stated in the answer stand admitted, and that they are sufficient to preclude the plaintiff from recovering. In the statute it is provided that “if the answer contain a statement of new matter, and the plaintiff fail to reply or demur thereto within the time prescribed by the rule or order of the court, the defendant shall have such judgment as he is entitled to upon such statement; and if the case require it, a writ of inquiry of damages may issue.” (2 Wagn. Stat. 1017, § 16.) Where the answer sets up new matter, and no replication is filed, the defendant should move the court for judgment upon the pleadings. That the Legislature intended such should be the practice, is plain; for a writ of inquiry of damages is provided for in the event that such a proceeding would be applicable or necessary. But no notice was taken of the failure to file the replication in the court below; the parties proceeded to trial upon the evidence; no objection was taken or point raised as to any insufficiency or defectiveness in the pleading, and I am not disposed to consider the question at this time. As the action is founded strictly on matters of fact, it is only necessary to see whether the law was properly declared to the jury.

In substance, at the request of the plaintiffs, the court instructed the jury that if defendant, in grading Fifth street, caused a dangerous embankment on a traveled street, leading into what is known as Faraon street; and if defendant permitted said embankment to remain for many months without any obstruction, by fence or otherwise, to prevent persons from being precipitated from said embankment; and without any light in the night time near said embankment, to warn travelers of their danger, then said defendant was guilty of negligence; and that if plaintiff, knowing the condition of said Faraon street, passed along...