Wheat v. City of St. Louis
| Decision Date | 10 February 1904 |
| Parties | WHEAT v. CITY OF ST. LOUIS, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Jno. W McElhinney, Judge.
Reversed.
Chas W. Bates and Benj. H. Charles for appellant.
(1) The city is not an insurer of the safety of travellers on the streets. It is not liable unless the street was in a condition unsafe to be used by persons exercising ordinary care in traveling thereon. Buckley v. Kansas City, 156 Mo. 16; Carvin v. St. Louis, 151 Mo. 334; Baustian v. Young, 115 Mo. 317. (2) The city has the lawful right to build in the street the sewer manhole, such as was shown in the evidence, in the manner so shown, and had the right to build the same at the height it was built prior to the complete grading and paving of the street; and the so-called obstruction was a lawful obstruction, not dangerous to those using the street in the exercise of ordinary care for their own safety. (3) Although the city was negligent still, as the negligence did not contribute to the injury, no recovery can be had on account of such negligence. Hutchinson v. Railroad, 161 Mo. 246. (4) Where the plaintiff's own testimony shows he is guilty of contributory negligence he can not recover. Failure to look where he was going when he knew the street was obstructed by the manhole and was unsafe, if it was unsafe, is negligence as a matter of law on the part of the plaintiff, and the court should have so declared. Cohn v. Kansas City, 108 Mo. 387; Hudson v. Railroad, 101 Mo. 30; Roberts v. Tel. Co., 166 Mo. 370; Sindlinger v. Kansas City, 126 Mo. 315; Hogan v. Railroad, 150 Mo. 55; 7 Am. and Eng. Ency. Law (2 Ed.), p. 412; 4 Am. and Eng. Ency. Law (1 Ed.), p. 15. The following cases from other States illustrate the rule above stated: Benton v. Philadelphia, 198 Pa. St. 396; Onri v. Magill, 101 Pa. St. 616; Schaefler v. Sandusky, 33 Ohio St. 246; City of Quincy v. Barker, 81 Ill. 300; Hutchins v. Priestly, etc., Co., 61 Mich. 252; Cowie v. Seattle (Wash.), 4 Mun. Corp. Cas. 417; Cloney v. Kalamazoo (Mich.), 4 Mun. Corp. Cas. 640; Town of Salem v. Walker (Ind. App.), 1 Am. Neg. Rep. 430; Bailey v. Brown Township (Pa.), 6 Am. Neg. Rep. 193; Grabbel v. Sioux City, 38 Iowa 390; Dale v. Webster County, 76 Iowa 370; Tuffree v. State Center, 57 Iowa 538; Yahn v. Ottumwa, 60 Iowa 429; Nebraska Tel. Co. v. Iones (Neb.), 81 N.W. 435; Tasker v. Farmingdale, 91 Me. 521; Gilmer v. Deerfield, 15 Gray 577; Corbett v. Leavenworth, 27 Kan. 673; Moone v. Richmond, 85 Va. 538; Walker v. Reidsville, 96 N.C. 385.
William H. O'Brien, B. R. Brewer and Robt. A. Holland, Jr., for respondent.
(1) St. Louis had a right to build a sewer under the street in question and had a right to annex manholes to said sewer, but this right did not extend to the city the privilege of constructing either the sewer or the manhole in a dangerous manner. If, in carrying out this right to erect a sewer and manhole, the city acted negligently and without regard to the safety of persons using the street, it would be liable to one injured in consequence thereof. In this case there is absolutely no evidence justifying, or tending to justify, the city in the erection or maintenance of this manhole. The evidence shows that it was allowed to remain standing three feet above the surface of the street for an entire year. The fact that the city contemplated at some distant time changing the grade of the street did not authorize it to allow such an obstruction to stand in the interim. On the contrary, if the city knows that it can not change the grade of the street for a long time, it is its duty to conform the height of the manhole to the existing grade. Gerdes v. Iron & Foundry Co., 124 Mo. 354. (2) The evidence does not show that the plaintiff, as a matter of law, was guilty of negligence. Appellant bases its contention upon the fact that plaintiff admitted that he knew, and had known for some time, of the existence of this obstruction on Vernon avenue. But it has been held over and over again by this court that mere knowledge on the part of plaintiff of a defect or obstruction in the street does not preclude him from recovering from an injury resulting from such obstruction. The law is not so tyrannous as to require a pedestrian or driver on a public street to eternally burden his mind with the consciousness of a defect and to devote his attention solely and exclusively to the existence of said defect and the exact place where it is, to the exclusion of all other thoughts and feelings. A pedestrian or a driver, although he knows that there is an obstruction in a certain part of a street, has a right, as he proceeds, to entertain feelings and thoughts in connection with other matters. Otherwise he would never accomplish anything. And the mere fact that at a given instant of time a pedestrian or driver forgets that a given obstruction in a street, at a given place, does not make him guilty of negligence as a matter of law. It is for the jury, under all the circumstances, to state whether the momentary forgetfulness of the plaintiff under such circumstances constitutes negligence. This has been directly held in the case of Graney v. St. Louis, 141 Mo. 180; Loewer v. Sedalia, 77 Mo. 431; Smith v. St. Joseph, 45 Mo. 449; Beauvis v. City, 69 S.W. 1043; Haller v. City, 78 S.W. 613.
This is an action for ten thousand dollars damages for personal injuries sustained by the plaintiff, on November 19, 1898, by his milk wagon running over and being upset by a manhole to a public sewer in Vernon avenue in the city of St. Louis, nearly opposite 4635 Vernon avenue. The plaintiff recovered a judgment for $ 1,000, and the defendant appealed.
The negligence charged in the petition is that the city constructed and maintained a manhole to a sewer in the street, which projected three feet above the level of the street, and which was about six feet in circumference, and had earth piled around the manhole, which was nine feet and six inches in diameter at the base and sloped towards the top, which it is alleged was a dangerous obstruction. The answer is a general denial and a plea of contributory negligence.
The facts are these: Vernon avenue is only one block long and extends from West End avenue to Walton avenue and is sixty feet wide. About a year before the accident the city had constructed a sewer near the center of the street, preparatory to constructing the street. The top of the manhole was made to conform to the grade of the street when it is constructed, but is about three feet above the level of the street in its present condition. This left a driveway on the north of the manhole eight feet four inches wide, and one on the south of the manhole twelve feet, ten inches wide. When the city finished building the sewer, the appropriation for the improvement of the street ran out, and the work had to be stopped. So this condition had existed for about a year before the accident occurred. The plaintiff was employed by the Union Dairy Company as a driver of one of its milk wagons, and had been delivering milk in that neighborhood for over five years, and on Vernon avenue for over a year. He had to deliver milk to a regular customer at No. 4635 Vernon avenue, and an irregular customer on the opposite side of the street. That was the end of his route, and when he delivered milk to these customers he turned and came east again. The manhole stood in the center of the street and nearly opposite to the steps that lead up into the premises No. 4635 Vernon avenue. The plaintiff knew all about the manhole and had seen it and driven around it every day for a year, sometimes west of it and sometimes turning east of it. On the morning of the accident he drove to 4635 Vernon avenue and got out and delivered milk. When he got out of the wagon he hung the reins up on a hook at the top of the wagon, which held the horse so he could not move without pulling the wagon by his mouth. He says his horse knew the way as well as he did, and did not need to be guided and he frequently let him go along without directing him and he knew where to stop. After delivering the milk he got into the wagon and took the reins off the hook and the horse started. He says he does not remember whether he turned the horse or whether he let the horse turn of his own accord. At any rate the horse turned the wagon to go east again, and in so doing ran up on the pile of earth surrounding the manhole, upset the wagon and the plaintiff was hurt. He says it was about six o'clock in the morning and that while it was after daybreak the morning was dark and foggy, but not so much so as to prevent his seeing the manhole, if he had looked. Other witnesses said, while it was foggy, one could see across the street, and anyone could see the manhole. The plaintiff says that he thought he had passed the manhole and consequently was not looking for it.
At the close of the plaintiff's case and again at the close of the whole case the defendant demurred to the evidence, the court overruled the demurrers, and the defendant excepted, and relies solely upon this ruling upon this appeal.
I.
The contention of the defendant is that the city was guilty of no negligence in constructing and maintaining the manhole in the condition shown, but that even if it was its negligence was not the proximate cause of the injury, but that the plaintiff well knew the fact and the condition and was guilty of such contributory negligence as bars a recovery. On the other hand, the plaintiff contends that while he knew of the existence and condition of the manhole and might have seen it and avoided it, still he was not obliged to keep it in mind but had a right to think of something else, and that...
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