Reedy v. St. Louis Brewing Association and City of St. Louis
| Decision Date | 29 March 1901 |
| Parties | REEDY v. ST. LOUIS BREWING ASSOCIATION and CITY OF ST. LOUIS, Appellants |
| Court | Missouri Supreme Court |
Appeal from Gasconade Circuit Court. -- Hon. Rudolph Hirzel, Judge.
Reversed and remanded.
B Schnurmacher, Carl Ungar and A. Nicholson for appellant city of St. Louis.
The evidence failed to disclose facts which amount to a cause of action against this defendant. There was no such proof of negligence as warranted a submission of the case to the jury. While the petition alleges that ice had formed upon the sidewalk to such an extent, and in such a manner, as to "obstruct passage" over the walk and to make it in that respect defective and unsafe, the proof showed that the accident to plaintiff was caused by his slipping; he neither stumbled, nor was his progress over the sidewalk impeded. It is not every accumulation of snow or ice upon the highway which makes it defective, nor will mere slipperiness from ice during inclement weather, and an accident resulting therefrom, create liability upon the part of a municipal corporation. The instructions offered by this defendant, and refused, correctly declared the law, and should have been given. But more than that, plaintiff having failed in the proof necessary to create an obligation on the part of the city, should have been nonsuited. Stanton v Springfield, 12 Allen (Mass.), 566; Nason v Boston, 14 Allen 508; Stone v. Inhabitants of Hubbardston, 100 Mass. 49; Grossenbach v Milwaukee, 65 Wis. 31; Broburg v. Des Moines, 63 Ia. 523; Taylor v. City of Yonkers, 105 N.Y. 202; Kinney v. City of Troy, 108 N.Y. 567; Kaveny v. City of Troy, 108 N.Y. 571; Harrington v. Buffalo, 121 N.Y. 147; Chase v. Cleveland, 45 Oh. St. 505; Henkes v. Minneapolis, 42 Minn. 530. The ice in question resulted in consequence of the sudden bursting of a water pipe on private premises adjoining the highway, and a sudden fall of temperature. These circumstances were casual and could not be foreseen, and therefore the city ought not to be held liable, even though the formation of ice was of such a character as to make the sidewalk temporarily defective. Market v. St. Louis, 56 Mo. 189. Plaintiff's own evidence showed that immediately after the bursting of the pipe and the wetting of the sidewalk all possible precautions were taken to prevent accident. The water was swept off the sidewalk with brooms and malt sprouts were strewn thereon, which remained until within two hours of the time plaintiff slipped. They were removed by small boys who made a slide of the ice, rendering it slippery. Under these circumstances the city will not be held liable for the accident to plaintiff. Myers v. City of Kansas, 108 Mo. 480.
Kehr & Tittmann for appellant Brewing Association.
(1) There is in this case no joint liability between the city and the brewing association. Each is sought to be charged upon a separate and distinct ground of liability -- the city because it failed to keep the sidewalk in a reasonably safe condition for public travel, the brewing association because the gutter and spout on its building adjoining the sidewalk are charged to have been defective and insufficient. If the city is liable, it is because of its own negligence, and not by reason of the supposed negligence of the Brewing Association. Donoho v. Vulcan Iron Works, 75 Mo. 405; Wiggins v. St. Louis, 135 Mo. 558; Norton v. St. Louis, 97 Mo. 537; St. Louis v. Ins. Co., 107 Mo. 92. (2) The city has sole control of the streets and sidewalks and is alone liable for their condition. The abutting owner has no such liability. Norton v. St. Louis, 97 Mo. 537; City v. Life Ins. Co., 107 Mo. 92; Baustian v. Young and St. Louis, 152 Mo. 317; Blake v. St. Louis, 40 Mo. 569; Bassett v. St. Joseph, 53 Mo. 290; Carrington v. St. Louis, 89 Mo. 208; 1 Shearman & Redfield on Negligence (5 Ed.), sec. 343. (3) The defendant Brewing Association owed the plaintiff no duty which it has violated. The petition alleges none. Hence, there is no negligence. Fuchs v. St. Louis, 133 Mo. 194; Barney v. Railroad, 126 Mo. 372; Gurley v. Railroad, 104 Mo. 211; Roddy v. Railroad, 104 Mo. 234; Cooley on Torts (2 Ed.), 791. (4) The Brewing Association is sought to be held for an alleged negligent use of its property abutting the street. It is not charged with trespassing on the street or doing any willful act therein. The condition of the sidewalk on the evening of December 1, 1896, was certainly the proximate cause of the plaintiff's injury, the condition of the gutter and spout on defendant's building on the evening of November 30, 1896, at best, is only the remote cause. The law always refers the injury to the proximate, not to the remote cause. Negligence is not actionable unless it is the proximate cause of the injury complained of. Shearman & Redfield on Negligence (5 Ed.), secs. 5, 8, 9, 25; Pollock on Torts (Webb's Ed.), pp. 26, 29 and 54; Addison on Torts (6 Ed.), p. 42; Cooley on Torts, 73; Stepp v. Railroad, 85 Mo. 229; Stanley v. Depot Ry. Co., 114 Mo. 606; Henry v. Railroad, 76 Mo. 288; Hoag v. Railroad, 85 Pa. St. 293; Sharp v. Rowell, L. R. 7 C. P. 253, 41 L. J. C. P. 95; Blythe v. Birmingham W. W., 11 Ex. 781, 25 L. J. Ex. 212; West Mahanoy Township v. Watson, 116 Pa. St. 344; Fawcett v. Railroad, 24 W.Va. 755; Scheffer v. Railroad, 105 U.S. 249; Chamberlain v. City of Oshkosh, 84 Wis. 289; Lewis v. Railroad, 54 Mich. 55; City of Rockford v. Trepp, 83 Ill. 247; Phillips v. Dickerson, 85 Ill. 11; Brandon v. Mfg. Co., 51 Tex. 121; City of Allegheny v. Zimmerman, 95 Pa. St. 287; Deisenrieter v. Malting Co., 97 Wis. 279; Schwartz v. Shull, 31 S.E. 914. (5) The ice on the sidewalk did not constitute an obstruction in the sense of the law. The instruction asked by the defendant Brewing Association on this subject should have been given. Broburg v. Des Moines, 63 Iowa 523; Chicago v. McGiven, 78 Ill. 347; Mauch Chunk v. Kline, 100 Pa. St. 119; Gilbert v. Roxbury, 100 Mass. 186; Smythe v. Bangor, 72 Maine 249; Pinkham v. Pottsfield, 104 Mass. 78; Taylor v. City of Yonkers, 105 N.Y. 202. (6) By stepping into the street, plaintiff would have avoided the ice on the sidewalk and would thus have escaped the risk of injury. His failure to do so is contributory negligence. Cohn v. City of Kansas, 108 Mo. 387; City of Indianapolis v. Cook, 99 Ind. 10; Boyle v. Borough of Mahanoy City, 40 A. 1093.
A. R. Taylor and B. L. Mathews for respondent.
(1) If the defendant St. Louis Brewing Association allowed water from its building to be cast upon the sidewalk in question and to freeze thereon, so as to render the sidewalk dangerous, and by the exercise of ordinary care could have removed the obstruction before the injury to the plaintiff, then the St. Louis Brewing Association is liable, whether the bursting of the water pipe and overflow of the water upon the sidewalk was accidental or not. Such defendant in such a case is liable because after it discovered that the water from its roof had created a dangerous nuisance on the sidewalk, it was bound to use care commensurate with the situation to remove the danger it created. This is a moderate statement of the liability of the St. Louis Brewing Association, under the circumstances, for cases can be produced in numbers where an abutting owner is held from the simple happening of the nuisance. Benjamin v. Railroad, 133 Mo. 285; Corwin v. St. Louis, 151 Mo. 347. (2) The city is primarily liable for the condition of its streets and sidewalks, but if another create a nuisance on a sidewalk as in this case, the city can be held, and only held, after it has notice either actual or constructive in time to have caused the removal of the nuisance. This is clearly held, in Carvin v. St. Louis, 151 Mo. 347; Baustian v. Young, 152 Mo. 325. This case is entirely unlike the cases cited for appellant, of Norton v. St. Louis, 97 Mo. 537 and City v. Ins. Co., 107 Mo. 92. These cases, nor any others cited give color to appellant's contention that an abutting owner may by his own act erect or cause a nuisance to exist in a street, and not be liable for the consequences. (3) It is obviously true, that the condition of the sidewalk on the evening of December 1, 1896, was the proximate cause of the injury. Had the condition been changed -- the nuisance removed, at any time before 7 p. m., December 1, 1896, the injury would have been averted. The wrongdoer continues liable; and if the city, by the required degree of watchfulness and care, could have removed the nuisance before plaintiff's injury, and neglected to do so -- then both are liable. Wiggin v. St. Louis, 135 Mo. 566. (4) Even if the plaintiff had known of the dangerous condition of the sidewalk in question (which the evidence shows he did not), this would not, under the circumstances of the case, have barred a recovery. Loewer v. Sedalia, 77 Mo. 404; Maus v. Springfield, 101 Mo. 618; Flynn v. Neosho, 114 Mo. 572; Graney v. St. Louis, 141 Mo. 184. (5) The instructions given for plaintiff are correct if the law is as we have urged under preceding points. We see no reason for criticism of the third instruction. The gravamen of the petition was the overflow of the gutter by water from appellant's building, by reason of defective gutters. It is immaterial that the water came from a bursted waterpipe. It did come. It did overflow. The question of defective gutter was submitted to the jury, and they answered by their verdict. Moreover, after the water was on the sidewalk through the default of appellant, it continued there up to the time of the injury to the plaintiff. This is all covered by the allegations of the petition. (6) Our courts have never undertaken to lay down a precise rule as to time necessary to impart notice to officers of a city of a defect in a...
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