Straub v. City of St. Louis
| Decision Date | 09 June 1903 |
| Citation | 75 S.W. 100,175 Mo. 413 |
| Parties | STRAUB v. CITY OF ST. LOUIS, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Affirmed.
B Schnurmacher and Alex. Nicholson for appellant.
(1) A municipal corporation is only "bound to keep the streets and highways in a proper state of repair, free from obstructions, so that they will be reasonably safe for travelers." Smith v. St. Joseph, 45 Mo. 449. (2) Those not using the streets for purposes of travel can not complain of their condition. The liability of the corporation extends only to travelers injured thereon. Kiley v. Kansas City, 87 Mo. 103; Russell v Columbia, 74 Mo. 480; Bassett v. St. Joseph, 53 Mo. 290; Smith v. St. Joseph, 45 Mo. 449; Brennan v. St. Louis, 92 Mo. 482. (3) A city is not bound to guard its streets or bridges so as to prevent children from playing on the same and exposing themselves to danger, and is not liable for injuries received while they may be thus engaged. Arnold v. St. Louis, 152 Mo. 173; Schauf's Admr. v. City of Paducah (Ky.), 50 S.W. 42; 6 Am. Negl. Rep. 73; Dehanitz v. St. Paul, 73 Minn. 385; Gavin v. Chicago, 97 Ill. 66.
Klene & Welsh for respondent.
(1) It was a negligent act to place the old counter upon the curbstone of the sidewalk, and to allow it to remain there for ten days. Both the counter and its location brought it within the rule creating a liability, where injury results from leaving dangerous obstructions unguarded. Koons v. Railroad, 65 Mo. 597; Nagel v. Railroad, 75 Mo. 661; Schmidt v. Distilling Co., 90 Mo. 284. (2) This rule must apply with greater force where, as here, the dangerous thing is placed upon the public highway. Two wrongs are thus committed: (a) Allowing the dangerous thing or obstruction to be placed and remain on the street. (b) Failing to keep the highway unobstructed. (3) It is lawful for children to play upon the public highway, and such persons injured while so engaged, when caused by the negligence of others, may recover. Donoho v. Vulcan Iron Works, 75 Mo. 401; Donoho v. Vulcan Iron Works, 7 Mo.App. 447.
This court has jurisdiction of this appeal solely because the city of St. Louis, the defendant, is one of the political subdivisions of the State.
The plaintiff, the mother of Edwin Straub, a minor not seven years old, brought her action against one Middleton and the city jointly for damages resulting to her as the mother, by the loss of the services of the child and for the value of his nursing and expenses of medical treatment, from the negligence of the said Middleton placing an old counter on the edge of the sidewalk on St. Louis avenue, and against the city for permitting it to remain there for a period of ten days, in a dangerous position and likely to injure children traveling or playing on the street.
Plaintiff recovered judgment for $ 400, and the city appeals.
The facts of the case are practically undisputed.
On or about the 20th of June, 1898, one Middleton, who was a shoemaker on St. Louis avenue in St. Louis, put an old counter out on the sidewalk in front of his premises. At first he placed it along the side of the house on the inside of the sidewalk, leaning it against the house. About two days later he placed it on the outside of the sidewalk near the curb, with the front part of the counter facing the sidewalk and the open part toward the street. The pavement was brick. There were no supports to the counter save that one end of it was closed and the front was solid; while the other end and the back were open.
Edwin Straub, the son of plaintiff, was between six and seven years old. The counter remained on the sidewalk in the position noted for about ten days. It had the words "for sale" written in chalk on it. On June 30th, Edwin was playing on the sidewalk with another boy and jumped or climbed on one edge of the counter from the outer or street side and it fell on him and broke his leg. The little boy's mother lived on the same avenue and nearly opposite Middleton's shop.
That the counter was unlawfully on the sidewalk in the circumstances detailed, there can be no sort of doubt. The sidewalks are highways and are not designed nor intended for the display of merchandise. Middleton had no right to obstruct the sidewalk with the old counter, and when the city officials permitted it to remain there ten days, it must be presumed they had notice of its being there. Having no support on one whole side and one end, it needed very little to upset it.
Such an obstruction on a public sidewalk, where old and young alike are free to travel, is one which the city was bound to see was likely to cause injury to some pedestrian, especially thoughtless and inexperienced children.
The main contention of the city for reversing the judgment of the circuit court is, that the little son of plaintiff when he was injured by the falling of the old counter on him was not travelling but playing on the sidewalk and we are cited to numerous cases limiting the liability of municipal corporations for accidents occurring on their streets to those who were using them for purposes of travel. But those cases do not reach the point now under consideration. Thus, in Bassett v. St. Joseph, 53 Mo. 290, it was held that "it is well settled in this State, that it is incumbent on a city having full control of streets therein, and the improvement thereof, to keep them in a reasonably safe and good traveling condition." In that case the city left or permitted an excavation on the border of one of its streets to remain unguarded, and a lady passing along the sidewalk by said excavation was near to a mule standing by said excavation and was kicked at by the mule, and in her effort to escape from the mule fell into the excavation. There the city contended that the excavation would not have caused the injury but for the action of the mule, and here that the counter would not have injured the boy if he had not jumped on it or touched it, but the court said it is true if it had not been for the kicking of the mule the injury might not have happened, but it is equally true that if there had been no excavation the kicking of the mule would have been harmless, necessarily each contributed to the injury, and the city was held liable. In Brennan v. St. Louis, 92 Mo. 482, 2 S.W. 481, this court approved the Bassett case and reasserted the doctrine that if the city's neglect combines with some other accidental cause it is liable.
In Kiley v. City of Kansas, 87 Mo. 103, the child was killed by the falling of a wall upon a house standing near the unguarded wall. The child was in the house when she was killed and not on the street, and the insistence was that the negligence of the city in not abating the nuisance of the old wall which stood on private property near the street entitled plaintiff to recover, but the court ruled that the child was not using the street for any purpose and there could be no duty owing to her because of the defendant's duty in respect to its streets. Clearly that case is not in point. Neither is Arnold v. St. Louis, 152 Mo. 173, 53 S.W. 900, where the children were skating on a private lot with a pond on it.
The case of Donoho v. The Vulcan Iron Works, 75 Mo. 401, does involve the question before us. In that case the circuit court gave the following instruction: "If the jury believe from the evidence that plaintiff, Donoho, at the time he received the injuries complained of, was in company with other boys using Clay street for the purpose of playing or amusing themselves thereon, and not for the purpose of passing or traveling on said street, then, notwithstanding he was injured, he can not recover against the city of St. Louis." The Court of Appeals reversed the judgment for the giving of this instruction and this court approved its judgment. The opinion of the Court of Appeals is found in 7 Mo.App. 447.
In that case, a boy eleven years of age was injured by the falling of a bank of earth upon him. The iron works company...
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