Carvin v. City of St. Louis
| Citation | 52 S.W. 210,151 Mo. 334 |
| Parties | Carvin v. City of St. Louis et al |
| Decision Date | 03 July 1899 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. John M. Wood Judge.
Reversed and remanded.
Lubke & Muench for appellant Claes & Lehnbeuter Mfg. Co.
This defendant is in the same legal attitude with the city in reference to its non-liability for hidden or latent defects. This was not a contrivance in itself dangerous, and no attempt was made by respondent to prove it so. On the contrary, it is shown affirmatively that its construction is such that danger therefrom is most improbable. Under these circumstances the rules laid down by this court in Benjamin v. Street Ry., 133 Mo. 274, can not apply here, although even in that case, it is conceded that some notice to defendant is essential to a liability. See, also Robert v. Powell, 52 N.Y.S. 918.
B Schnurmacher and Chas. Claflin Allen for appellant City of St. Louis.
(1) A defect to put the city on notice must be open, obvious and palpable; proof of hidden or latent defects, which would not attract or arrest ordinary attention, is not sufficient. Dillon's Mun. Corps., sec. 1026; Franke v. St. Louis, 110 Mo. 539; Cooper v. Milwaukee, 3 Am. Neg. Rep. 304; Burns v. Bradford City, 137 Pa. St. 361; Otto Township v. Wolf, 106 Pa. St. 608; McClosky v. DuBois Borough, 40 Weekly Notes, 214. (2) Every defect or imperfection in the streets or sidewalks of a city is not actionable, nor is the city a warrantor of the safety of its streets, or insurer against accidents thereon. Dillon's Mun. Corps., sec. 1019; Elliott on Roads and Streets, 448; Shearman & Redf. on Neg., sec. 290; Craig v. Sedalia, 63 Mo. 417; Brown v. Glasgow, 57 Mo. 156; Cooper v. Milwaukee, 3 Am. Neg. Rep. 304. (3) The mere fact that the plaintiff was injured in the manner charged, is not sufficient proof of negligence against the city. The court should have given instruction number 7, offered by this defendant, to the effect that if plaintiff was hurt in consequence of unavoidable accident or misadventure she could not recover. Henry v. Street Ry., 113 Mo. 537; Jones on Neg. of Mun. Corps., sec. 230.
George Bullock and A. R. Taylor for respondent.
(1) The contention that there was no evidence of a defective condition of the cover, that was discoverable by ordinary inspection, can not stand, if the witness Burch is to be credited. He did discover the defective condition "weeks before" the accident. Saw that it would spring up if he stepped on the corner; saw that the southwest corner was stuck up above the surface of the sidewalk one-half or three-eights of an inch. If this was so, certainly it showed a defective condition observable to ordinary inspection. It looks most reasonable that if the casual passerby would notice such defect, the city, by its officers charged with the duty of inspection, ought to have seen and repaired the defect. The general rule is that a city, by its agents charged with the duty of maintaining its streets, is bound to exercise ordinary care of inspection to ascertain the condition of its streets, and to exercise ordinary care to keep its streets and sidewalks reasonably safe for their use by persons exercising ordinary care; and for a neglect of this duty resulting in injury to a person using the street or sidewalk with ordinary care, the city is liable. Blake v. City, 40 Mo. 570; Bowie v. City, 51 Mo. 462; Bassett v. City, 53 Mo. 296; Welsh v. City, 73 Mo. 74; Roe v. City, 100 Mo. 193; Haniford v. City, 103 Mo. 181; Franke v. City, 110 Mo. 521; Flynn v. Neosho, 114 Mo. 572; Gerdes v. Christopher, 124 Mo. 354; Nixon v. Railroad, 141 Mo. 437. (a) The evidence of Burch and Pohlman tending to prove that the cover was out of order for weeks before the injury to the plaintiff, and the jury having by their verdict so found, that fact must be taken as true in this court. James v. Mutual Reserve, 148 Mo. 1; Moore v. Ray, 73 Mo. 438; Bray v. Kremp, 113 Mo. 552; Etlinger v. Kahn, 134 Mo. 497. (b) This was no latent or hidden defect if the lid stuck up at the southwest corner, so that it sprung when stepped upon by a person as described by the witness, Burch. It was a defect open to the observation even to a passerby, and certainly should have been seen by a person whose duty it was to inspect. (c) If the facts were as found by the jury there was no element of unavoidable accident in the case. And it was no error to refuse the instruction because it was a pure abstraction. Meiners v. City, 130 Mo. 286.
This is an action for damages in the amount of fifteen thousand dollars for personal injuries alleged to have been sustained by plaintiff on August 12, 1894, by falling into a water meter box on the south side of Washington avenue, city of St. Louis, about twenty feet east of the east line of Twenty-Second street, in front of the premises of the Claes & Lehnbeuter Manufacturing Company.
The petition alleges that at the time of the accident, and for some time previous thereto, the cover of the meter was without fastenings, was loose and liable to become displaced and removed, and the opening to become exposed by reason of the accumulation of dirt and debris in the flanges and under said cover. As to the city of St. Louis the petition alleges that by its proper officers in charge of keeping its streets and sidewalks in repair, it had notice, or by the exercise of ordinary care would have had notice of the dangerous condition of the covering of the water meter, before plaintiff received the injuries complained of, in time to have repaired the same and to have averted the injury. As to the manufacturing company the petition alleges that it was negligent in maintaining said cover in said defective condition. And that by reason of said defective condition of said cover plaintiff on the 12th day of August, 1894, while passing over said sidewalk stepped upon said cover when it gave way and plaintiff's foot and leg fell into said opening, whereby she was greatly and permanently injured upon her leg, knee, hip and back, and sustained a great shock to her nervous system.
Defendants answered separately denying all allegations in the petition, and alleging contributory negligence on the part of plaintiff.
The case was tried to the court and jury.
There was a verdict in favor of plaintiff assessing her damage at $ 1,800 upon which judgment was rendered.
After unsuccessful motion by each of the defendants for a new trial, they prosecute separate appeals.
The manufacturing company on application to the defendant city, in June, 1891, was permitted to sink in the sidewalk, in front of its business establishment, a water meter for the purpose of measuring the consumption of city water in its factory. The meter is placed in a square box, and is covered with an iron lid, set in a square flange on a level with the surface of the pavement. This lid is about twenty inches square, is made of iron and weighs about forty-four pounds. The flange in which it rests is about one inch wide.
About two o'clock in the afternoon of the day of the accident plaintiff was walking along on the sidewalk on Washington avenue, near the southeast corner of said street and Twenty-Second street, when she stepped with her right foot upon the meter cover, which slipped, and her right foot and limb went into the opening, in consequence of which her limb was severely bruised, and her back injured.
She testified as a witness in her own behalf substantially as follows: Am 32 years old, and prior to August 12, 1894, was a dressmaker. Have resided in the city of St. Louis five years. On August 12, lived at 2206 Locust street, and was in good health. On August 12, 1894, I left my house and went north on Twenty-Second street to Washington avenue in order to take the car going east on the avenue. Having reached Twenty-Second and Washington avenue I crossed Twenty-Second street and went over to the southeast corner of Washington avenue and Twenty-Second street, and a car having just passed, I knew I would have to wait a minute or two therefore I started down the pavement to wait for the car, "but before I reached the pavement I stepped on this flange, which slid out and I fell." When I say the flange, I mean the water meter cover, which was a square piece of iron about 18 or 20 inches in size. When I stepped on it it slid down; that is, it slipped off, towards the west. I fell into the hole as far as I could go with one limb; I mean the hole where the cover had been. As near as I can say the cover was 18 inches square, and it was my right limb that went into the hole. As I fell I struck my back against the edge of the iron; the lid or cover slipped entirely off. The sidewalk there is paved with stone or granitoid, and has a smooth surface. I can not say whether I stepped on the flange or against it; I think I stepped on the edge of the iron. I know the covering was there, and I never noticed it was in a dangerous condition. The sidewalk of which I have been speaking is the sidewalk on Washington avenue, which is, and at that time was, a public street. When my limb went down I fell a little towards the right, the east of the covering. It was the right side of my back which came into contact with the iron. My knee was badly bruised and skinned, also my back and hip, just above the hip between the back. The back was hurt a little to the right of the center. I was helped up by a gentleman who crossed the street, but I was able to walk, and when the car came I took it and then returned home. The next morning Dr. Edmunds called on me; that evening of the accident I had no surgeon. The accident happened about two o'clock in the afternoon; the day was bright and...
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