Buesching v. St. Louis Gaslight Co.

• Decision Date: 31 October 1880
• Citation: 73 Mo. 219
• Parties: BUESCHING, Appellant, v. THE ST. LOUIS GASLIGHT COMPANY.
• Court: Missouri Supreme Court

73 Mo. 219

BUESCHING, Appellant,

v.THE ST. LOUIS GASLIGHT COMPANY.

Supreme Court of Missouri.

October Term, 1880.

[COPYRIGHT MATERIAL OMITTED]

Appeal from St. Louis Court of Appeals.

REVERSED.

Broadhead, Slayback & Hauessler for appellant.

Upon the testimony adduced for the plaintiff, a prima facie case of negligence on the part of defendant was made out. It showed a careless and dangerous pitfall constructed by defendant in the very heart and center of a great city; that defendant had failed to erect any railing or guard to protect passengers from falling therein, where so many were liable to fall; that plaintiff's husband had been caught in the trap of defendant, and was found dead in it under circumstances necessarily justifying the inference that the fatal disaster could never have happened but for the negligence of defendant. The evidence warranted the circuit court in submitting the case to the jury. Hall v. Fond du Lac, 42 Wis. 274; Congreve v. Smith, 18 N. Y. 79; Cassidy v. Angell, 12 R. I. 447; Morgan v. I. & St. L. B. Co., 5 Dill. C. C. 96; s. c., 7 Cent. Law Jour. 311; Cooley on Torts, p. 660; Vale v. Bliss, 50 Barb. 358; Stratton v. Staples, 59 Me. 94; Davis v. Hill, 41 N. H. 329; Baltimore & Ohio R. R. Co. v. Boteler, 38 Md. 568; Beck v. Carter, 68 N. Y. 283; Wettor v. Dunk, 4 Fost. & Fin. 298; Willey v. Portsmouth, 35 N. H. 303; Coggswell v. Lexington, 4 Cush. 307; Hayden v. Attleborough, 7 Gray 338; Jones v. Waltham, 4 Cush. 299; Palmer v. Andover, 2 Cush. 600; Barnes v. Ward, 2 Carr. & Kir. 666; Staples v. Town of Canton, 69 Mo. 593; 2 Dillon Munic. Corp., § 789; Oliver v. Kansas City, 69 Mo. 79; Blake v. St. Louis, 40 Mo. 569; Bowie v. Kansas City, 51 Mo. 454; Hicks v. P. R. R. Co., 64 Mo. 439; Bassett v. St. Joseph, 53 Mo. 298.

The fact that the premises were in the possession of a tenant and not of the gas company, does not relieve the latter of liability. Shearman & Redfield on Neg., §§ 498 to 502; Wharton on Neg., § 817; Leslie v. Pounds, 4 Taunt. 649; Bishop v. Trustees, etc., 28 Law Jour. Q. B. 215; s. c., 1 Ell. & Ell. 697; Durant v. Palmer, 5 Dutch. (29 N. J. L.) 544; Pickard v. Collins, 23 Barb. 444; 1 Addison on Torts, 197, 202, 203, 205, 206, 228. If it be true that it is customary for such pitfalls to be exposed in the crowded streets of St. Louis, (which we deny,) it is full time that a stop should be put to such an unlawful and murderous custom. Human life is sufficiently precarious without multiplying reckless devices for its untimely taking off. The idea that a man can be allowed to dig a deadly pit right in the path of thousands of human beings, and then claim it is all right because others do it; or because others have passed that way and yet escaped; or, because every man must be on the everlasting alert and keep himself out of it, or stand the blame of his misfortune, which could never have happened but for the reckless act of the trap-maker, presents a mode of reasoning that has never received the sanction of our more enlightened tribunals. Morissey v. Wiggins F. Co., 47 Mo. 521.

Cline, Jamison & Day for respondent.

1. The proof established the fact affirmatively, that deceased must have been guilty of negligence in getting into the cellar-way, and becoming the first victim of an accident, since its construction, in twenty-four years. When the nature and character of the accident, (in the absence of any proof whatsoever showing how it occurred,) discloses a presumption of negligence in the deceased, or makes it probable that he failed to exercise the ordinary care of prudent and careful men, in passing the point of danger, then the plaintiff is not entitled to recover. Thompson v. N. M. R. R. Co., 51 Mo. 190. As the alleged negligence of defendant was inert, and the deceased at the time of the accident, was the active party and is alleged to have been walking along the street, by his own volition he brought himself in contact with the danger, and this made it incumbent on him to exercise ordinary care; and under the circumstances of this case, should have pleaded and proved the fact.

2. By the second instruction given for the plaintiff the jury were told that “ordinary care means that degree of care which may reasonably be expected of a person in the situation of plaintiff's husband at the time the accident occurred.” What could be reasonably expected of a man in his situation, and what was his situation at the time he received the injuries? It seems he was drunk. What would reasonably be expected of a drunken man navigating the wet and slippery street in the night time? That he would stagger into this or some other stairway and break his neck, although the street had been used in its present condition for twenty years without accident. The definition of ordinary care furnished by this instruction is unknown both to the common and civil law. Shearman & Redfield on Neg., § 30; Mackey v. N. Y. Cent. R. R. Co., 27 Barb. 542; Toledo, etc., R. R. Co. v. Goddard, 25 Ind. 185; Cleveland R. R. Co. v. Terry, 8 Ohio St. 570; Pa. R. R. Co. v. McTighe,46 Pa. St. 316; Mackay v. N. Y. C. R. R. Co., 35 N. Y. 75.

3. If the deceased had been stricken down by defendant while in the street, the mere fact of his being on the street would be sufficient justification to him. But as he was found in defendant's cellar-way at the side of the street, it becomes obligatory on plaintiff to allege and prove that he got there without any negligence on his part, and the mere fact that he was found there, is no justification for his getting there, nor does it exclude the presumption of his getting there by reason of his own carelessness, or tend to show that he was in the exercise of ordinary care at the time. Murphy v. Deane, 101 Mass. 466; Trow v. Vt. C. R. R. Co., 24 Vt. 487; Birge v. Gardiner, 19 Conn. 507; Warren v. Fitchburg R. R. Co., 8 Allen 227; Allyn v. B. & A. R. R. Co., 105 Mass. 77; Baird v. Morford, 29 Iowa 539.

4. The plaintiff should have been non-suited. Bridges v. N. L. Ry. Co., L. R., 7 H. L. 213; Skelton v. L. & N. W. Ry. Co., L. R., 2 C. P. 631; Pennsylvania R. R. Co. v. Rathgeb, 32 Ohio St. 66; Havens v. E. Ry. Co., 41 N. Y. 296; Galena, etc., R. R. Co. v. Loomis, 13 Ill. 539; Ernst v. H. R. R. R. Co., 39 N. Y. 61; Harlan v. St. L., K. C. & N. Ry, Co., 64 Mo. 480; s. c., 65 Mo. 22; Fletcher v. A. & P. R. R. Co., 64 Mo. 484; Railroad Co. v. Houston, 95 U. S. 697; Maher v. A. & P. R. R. Co., 64 Mo. 267; Wharton on Neg., § 384; Shearman & Redfield on Neg., §§ 488, 488 a; Gorton v. E. Ry. Co., 45 N. Y. 662; Cotton v. Wood, 8 C. B. (N. S.) 566; Rrown v. St. P. & M. Ry. Co., 22 Minn. 165; Reynolds v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 248; Johnson v. Hudson R. R. Co., 20 N. Y. 66; Wilds v. Hudson R. R. Co., 24 N. Y. 430; Davis v. N. C. & H. R. R. Co., 47 N. Y. 400.

HOUGH, J.

This was an action against the St. Louis Gaslight Company, as owner, and one Barnes, the tenant in possession of a certain building on Pine street, in the city of St. Louis, for negligence in not guarding the entrance to an area or opening in front of said building, and abutting upon the sidewalk, into which it is alleged the plaintiff's husband fell on the night of January 22nd, 1876, and was thereby killed.

The building in question is located on the north side of Pine street and on the west side of and adjoining an alley which runs north and south through the block lying between Second and Third streets. All the houses on the north side of Pine street between the alley and Third street are set back two feet and six inches from the north line of the sidewalk. The opening in question is about eight feet long, east and west, three feet nine inches deep, and two feet five inches wide, and is, therefore, outside the sidewalk and on defendant's ground; and, being designed to furnish means of descent to the cellar or basement of their building, had five straight stone steps, and two winding ones at the bottom leading to the basement door. The top step, which is eight inches wide, is flush with the east wall of the building, which is on the west line of the alley, and the descent into the cellar, therefore, begins just eight inches from the east wall. This opening is guarded by a railing at the west end, and had also a railing on the south side, extending to within two feet of the east edge of the top step, so that persons might step from the sidewalk on the second step. But the eastern end or entrance had no guard or barrier of any kind. There are several openings of the same kind in the block, and the testimony tended to show that similar openings existed throughout the city.

Buesching, at the time of his death, kept a saloon on Chestnut street between Main and Second streets, two blocks distant from the place of the accident, and lived with his family over his saloon. He was an industrious man, attentive to his business, and though in the habit of drinking, was not a drunkard. He was last seen alive by the barber at a shop on Olive street, near Second, who knew him well, and had been in the habit of shaving him every Saturday night for two years. At 9 o'clock p. m., of January 22nd, which was Saturday, Buesching went to this barbershop and was shaved. He waited until the shop was closed, and asked the barber to take a drink with him, which he declined to do. It does not appear that deceased took a drink, and the testimony is that there were no saloons then open in that vicinity. The barber testified that when he was at the shop he was rational and knew what he was about. He could not say that he had been drinking, for he saw no effects of it. He further testified: “He might have been drinking, but I never saw him so intoxicated as not to be able to take care of himself and to walk, and never saw him stagger, and never saw him affected by liquor.” They walked together from the shop to the corner of Second and Olive streets, where they separated about a quarter to ten o'clock, the barber going west on Olive and the...