Badgley v. City of St. Louis

• Decision Date: 23 December 1898
• Citation: Badgley v. City of St. Louis, 149 Mo. 122, 50 S.W. 817 (Mo. 1898)
• Parties: BADGLEY v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

50 S.W. 817

149 Mo. 122

BADGLEY v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

December 23, 1898.

MUNICIPAL CORPORATIONS — ST. LOUIS CITY CHARTER — ACTIONS FOR TORTS — PARTIES — NEGLIGENCE — INSTRUCTIONS — DAMAGES — EXCESSIVENESS.

1. St. Louis city charter, providing that persons liable with the city shall be joined in actions against it, and no judgment shall be rendered against the city unless it is rendered against such person, is violative of Rev. St. 1889, § 1995, providing that every person having a cause of action against several may sue all jointly, or as many as he deems proper.

2. In an action against a city for damages for an injury to plaintiff's horse, occasioned by rubbish piled in a street by a third person, an instruction to find for plaintiff if the city permitted the obstruction to remain in the street for several weeks prior to the accident, and at which time it was dangerous, in consequence of which the horse was injured, is erroneous, since the city's liability ought to have been predicated on its negligence in not removing the obstruction within a reasonable time after notice.

3. In an action for damages for injury to a horse, an instruction that the jury may allow such sum as they believe the horse was damaged is erroneous, as it furnishes no rule by which the damages can be ascertained.

4. A verdict, in an action for damages, is excessive where the amount awarded exceeds that shown by plaintiff's evidence.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Action by William A. Badgley against the city of St. Louis. There was a judgment for plaintiff, and defendant appeals. Reversed.

The city of St. Louis appeals from a judgment against it for $200. The suit is for damages on account of an injury to a horse belonging to plaintiff, which resulted from certain obstructions which said city permitted to remain in one of its streets. The action was begun before a justice of the peace against the Farmers' Elevator Company and the city of St. Louis. The trial there resulted in a judgment for the elevator company, but against the city. The latter appealed. The plaintiff took no appeal from the judgment rendered in favor of the elevator company. An amended statement was filed in the circuit court, and in the caption thereof the names of both defendants were mentioned. The court struck therefrom "The Farmers' Elevator Company," holding that it was no longer a party to the suit. The gravamen of the complaint is that dirt, rubbish, and other obstructions were placed in Madison street, in said city, between Main street and the levee, and were negligently permitted by the city to remain there for two or three weeks prior to the 7th of November, 1892, unguarded, and without any light or other warning to persons traveling along said street at night; and that said street at that point was thereby rendered unsafe and dangerous. The complaint further charges that during the nighttime on the 7th of November, 1892, he was driving upon said street, and while he was in the exercise of due care his horse came in contact with said obstruction so carelessly permitted to remain in the street by the defendants, and was caused thereby to fall down, and received serious injuries. It is further alleged that said horse, in consequence thereof, "became permanently injured and damaged to the extent of $100, and that by reason of said injury to said horse as aforesaid, the said horse could not be used for a space of four months subsequent thereto, and that said plaintiff was damaged by the loss of the use of said horse in the sum of $50; that the plaintiff expended in the care of said horse the sum of $50 while injured as aforesaid." Judgment was asked for $200. When the cause came on for trial in the circuit court, plaintiff was called as a witness in his own behalf, and testified that in 1892 he was in the express business in St. Louis. The defendant here interposed an objection to the introduction of any evidence on the ground that the petition failed to state a cause of action against the city of St. Louis, "and on the further ground that the suit was originally brought against the city and the Farmers' Elevator Company, and, the case having been dismissed as against the elevator company, and judgment having been rendered against the city, the latter took an appeal, and no appeal was taken by plaintiff from the judgment of dismissal entered by the justice in favor of the elevator company; and that by reason thereof, and of the facts set forth in the petition, which shows that, if the city was liable, so also was the elevator company, therefore, under the charter of the city of St. Louis, no right of action exists against the city of St. Louis." This objection was overruled, and the trial proceeded. Plaintiff introduced testimony to the effect that there was a pile of dirt and rubbish near the middle of Madison street, about 2½ feet high, and about 7 feet long. There was no light at the place, and while he was driving along the street he could not see this obstruction, and drove his horse into it. The horse was thrown down, and "got tangled up in the harness, and the shafts ran into his shoulder, and crippled him." Plaintiff employed a veterinarian to attend to his horse at a cost of $20. The use of the horse was worth $20 a month, and plaintiff was deprived of him for nearly three months on account of the injury. His value was about $125 before the accident, and from $20 to $25 afterwards. The dirt and rubbish had been piled in the street for three or four weeks before the horse was hurt, and there was no light there that night. At the close of the plaintiff's case the city offered a demurrer to the evidence, which the court refused. Defendant then proved that the obstruction was placed in the street by men working for the Farmers' Elevator Company. A policeman stated that he saw these parties piling the dirt upon the street, and that they had been piling it there from time to time for three or four weeks. It had been accumulating for that long. It was not all put there at one time. He notified the elevator people to remove it, but did not report the condition of the street. He did not say that all of the pile of rubbish was placed in the street by the elevator employés, but he saw them throwing dirt there at different times. The court, at plaintiff's request, and over the defendant's objection, gave to the jury this instruction: "The court instructs the jury that if they believe, from the evidence in this case, that the defendant, the city of St. Louis, permitted dirt and other obstructions to be placed and remain on Madison street, between Main street and the levee, in the city of St. Louis, Missouri, and to remain there for three or four weeks prior to the 7th day of November, 1892, and that said dirt and other obstructions were so piled upon said street upon the 7th day of November, 1892, as to make the same dangerous for any citizen traveling along said public street, and using ordinary care in so doing, and that the horse and wagon of the plaintiff, without any negligence on the part of the plaintiff, while traveling said street, ran upon said pile of dirt and rubbish, which caused said horse to fall, and thereby maim and injure himself, then the jury will find in favor of the plaintiff for such sum as they may believe from the evidence that the said horse was damaged or injured, and for such additional sum as was reasonably expended for the care of said horse, and the reasonable value of the use of said horse during the time he could not be used by reason of such injury." The court refused an instruction asked by defendant, as follows: "The court instructs the jury that if they believe, from the evidence, that any other person or persons, company or companies, have been negligent in piling up the rubbish, etc., complained of, they will find for defendant, the city of St. Louis." There was a verdict for plaintiff for $200, and, after an unsuccessful motion for a new trial, this appeal followed.

B. Schnurmacher and Alex. Nicholson, for appellant. Collins & Jamison, for respondent.

WILLIAMS, J. (after stating the facts).

1. This case presents an important question of practice in cases wherein the city of St. Louis is a party, which deserves, and has received, our careful consideration. The point was pressed at the trial, both by an objection to the introduction of evidence and in the instructions asked by defendant, and it is renewed here, that, as plaintiff failed to obtain a judgment against the Farmers' Elevator Company, whose servants put the obstructions complained of in the street, the judgment against the city cannot stand. Reliance for this position is placed upon the following section of the charter of said city: "Whenever the city shall be made liable to an action for damages, by reason of the unauthorized or wrongful acts, or of the negligence, carelessness or unskillfulness of any person or corporation, and such person or corporation shall also be liable to an action on the same account by the party so injured, the injured party, if he sue the city for damages suffered by him, shall also join such other person or persons or corporation so liable, if residing in the state, so that they can be served by process, as a defendant or defendants in his suit, and no judgment shall be rendered against the city unless judgment is rendered against such other person or corporation so liable to be sued as aforesaid; and if any action be brought against the city alone, and it is made to appear that any person or corporation ought to be joined as a defendant in the suit, according to the provisions of this section, the plaintiff shall be non-suited; but no person shall be liable under this act to be sued jointly with the city, who would not be liable to be sued separately, irrespective of its provisions. When a judgment shall be obtained against the...