Bassett v. City of St. Joseph

• Citation: 53 Mo. 290
• Parties: NANNIE W. BASSETT, Appellant, v. THE CITY OF ST. JOSEPH, Respondent.
• Decision Date: 31 August 1873
• Court: United States State Supreme Court of Missouri

53 Mo. 290

NANNIE W. BASSETT, Appellant,

v.THE CITY OF ST. JOSEPH, Respondent.

Supreme Court of Missouri.

August Term, 1873.

Appeal from Buchanan Circuit Court.

Loan, Hall & Oliver, and Hill & Carter, for Appellant.

I. Municipal corporations are bound to keep streets, &c., in a proper state of repair and free from obstructions, so that they will be reasonably safe for travel, and if they neglect to do this, they will be held liable for all injuries resulting from such neglect. (Blake vs. City of St. Louis, 40 Mo., 569; Alger vs. City of Lowell, 3 Allen, 402; Beecher vs. Larkin, 19 Mo., 192.)

II. Where there is a choice of routes, either of which may be lawfully taken, the citizen is not bound to select the one least dangerous. (Huelsenkamp vs. Citizen's R. R. Co., 37 Mo., 537.)

III. Negligence of the corporation in regard to its duty, and ordinary care and prudence on the part of the individual, form the necessary elements of what it takes to constitute a cause of action. (Smith vs. City of St. Joseph, 45 Mo., 449.)

IV. The instruction given by the court on its motion ought to have been refused. The city has no right to have pit-falls dug, in and adjacent to the public thoroughfares, for the citizens to fall into, in their efforts to escape from other dangers in the street, which threaten them with great injury. All citizens are entitled to have the streets kept in a reasonably safe condition, as a means to escape any danger that may threaten them. (25 Iowa, 108; Ang. on Highways, § 295; City of Lacon vs. Page, 48 Ill., 499; Joliet vs. Verley, 35 Ill., 35; Palmer vs. Inhabitants of Andover, 2 Cush., 600; 16 Pick., 189; 6 Gray, 395.)

Chandler & Sherman, for Respondent.

I. If it were true that plaintiff was thrown into the excavation by means of being kicked by the mule, or was frightened thereby, so that she jumped in, the city is not liable for the injury resulting therefrom in any event. (32 Me., 46; 51 Me., 127.)

II. The excavation complained of was itself lawful, and was continued up to the time of the injury of plaintiff for a lawful purpose. (8 Ohio St., 358; Robbins vs. Chicago, 4 Wall., 676; 2 Black, (U. S.) 424; Chicago vs. Robbins, 2 Black, 426.) If the excavation was of itself lawful, and might lawfully be continued for a reasonable and necessary time, it devolves upon the plaintiff to show that the excavation was unreasonably continued, and that at the time of the injury the said excavation was exposed beyond what was necessary for building purposes, and also that the city had notice of that identical instance of exposure, and carelessly neglected it. These facts must be pleaded as well as proved. A general charge of negligence against the defendant will not suffice. (4 Wall., 658; 42 Mo., 193; 49 Mo., 170; as to notice, see 4 Wall., 195; 5 Bosw., 497; 36 Barb., 226.)

III. The city's liability does not extend beyond the territory of the street, especially when the sole cause of the injury was an accident. (8 Metc., 392; Dillon on Mun. Corp., 753.)

VORIES, Judge, delivered the opinion of the court.

This action was brought by the appellant against the respondent, to recover damages for injuries sustained by the appellant, by reason of being precipitated into an excavation adjoining to, and extending into one of the public thoroughfares of the city, and which it is charged was by the negligence of the respondent left in an exposed and dangerous condition so as to endanger the safety of persons in passing along said thoroughfare.

The action was originally brought by the appellant and her husband, Jonathan M. Bassett, but he having died after the commencement of the action, the suit was abated as to him.

The petition, after stating the incorporation of the defendant and its duty to keep the streets and public ways of the city in good repair, &c., charges in substance, that about the 26th of May, 1869, the defendant not regarding its duties unlawfully, negligently and knowingly permitted a deep and dangerous excavation, extending into the public thoroughfare on the east side of Market Square in said city, to be open and unguarded to the great danger of all citizens passing along said thoroughfare and by said excavation; that the appellant in a lawful manner attempted to pass along said thoroughfare and by said excavation, when she was precipitated therein without any fault on her part. That she was greatly injured thereby and severely and permanently crippled; that said injuries were occasioned by reason of the negligent, careless and unlawful act of the respondent in knowingly permitting said excavation to be and remain in one of the most public thorougfares in the city, in an open unguarded and exposed condition to the great damage of those passing by. Damages are claimed in the sum of twenty thousand dollars.

The defendant by its answer, after denying the allegations of the plaintiff's petition, sets up the following as a defense to the action:

“Defendant for further answer and defense to plaintiff's cause of action states, that one John Kirschner owned a lot of ground situate on corner of Felix St. and an alley running and extending from North to South between Felix and Edmond streets, in the City of St.Joseph, said alley being immediately east of Market Square in said city; that said Kirschner, wishing and intending to improve said lot and to erect buildings thereon, made an excavation on said lot adjoining said alley for the sole purpose of laying a foundation for said building; that after said excavation by said Kirschner had been made and while said foundation was being built with all convenient dispatch, (the said excavation being carefully guarded by day and during the night time) the said Nannie W. Bassett carelessly, negligently and with great rashness attempted to pass along said alley in front of said excavation, while the said excavation was necessarily unfenced in order that materials for said foundation might be (as they were actually being) placed in said alley, and in full light of day, and that she, the said Nannie W. Bassett, while attempting to so pass said excavation as aforesaid, in the day time as aforesaid, had and held in her hand a large basket, and a number of articles of bright tinware; that while so attempting to pass as aforesaid, said Nannie W. Bassett came near to a mule standing near said excavation and near where said Bassett was then and there attempting to pass by said excavation, and said mule by reason of the rattle and din of said tinware, so carried by the said Bassett, as aforesaid, became frightened and either kicked the said Nannie W. Bassett into, or the said Nannie W. Bassett being frightened at said mule jumped into said excavation, this defendant does not know which; and that all the injuries received and sustained by the said Nannie W. Bassett were by, and resulted from, her careless and rash attempt to pass along as aforesaid by said excavation, and her being thrown into said excavation as aforesaid, and not from any fault of defendant; that at the time of plaintiff's attempt to pass said excavation as aforesaid, there was then and there another and safe way to pass by said excavation in full sight of said plaintiff, which she could have passed and traveled through without injury or danger to herself.”

“Wherefore defendant avers, that the plaintiff carelessly and negligently contracted whatever injuries she received without the fault of the defendant.”

To this answer plaintiff filed a replication, in which she admits that Kirschner made an excavation on the lot described in the answer, but charges that said excavation extended into and obstructed the thoroughfare as stated in the petition, and denies all other allegations in the said answer.

Upon these issues the parties went to trial. The record in the cause presents a large mass of testimony offered by the parties on each side of the case, which it is not necessary to notice for the purposes of this case, further than to state, that each party introduced evidence which tended to prove the issues on their behalf respectively. The evidence on both sides tended to prove, that the plaintiff, in attempting to pass along the sidewalk connected with the public street or thoroughfare opposite to the excavation complained of, and between said excavation and a wagon standing in the street to which was attached a pair of mules, was kicked at by one of the mules, and that she was either kicked into the excavation, or in her effort to avoid the mule was precipitated into the excavation.

At the close of the evidence the plaintiff moved the court to give the jury several instructions, all of which were refused. The court then, at the request of the defendant, instructed the jury as follows:

“It is admitted by the pleadings in the case, that so much of the excavation complained of by the plaintiff in her petition, as was made upon the premises of John P. Kirschner, was for the sole purpose of erecting a building thereon and improving the same; and the court instructs the jury, that said Kirschner had the right, during the time he was so building upon and improving his lot, to employ and occupy a reasonable portion of the street adjacent to said lot for a reasonable and necessary time for the purpose of aiding and facilitating said work.”

“If the jury believe from the evidence in this case, that there were sufficient barriers and obstructions in the street and sidewalks, around the said excavation at the time of plaintiff's alleged injury, to notify or warn the public of the existence of said excavation, the plaintiff was bound to exercise reasonable and ordinary care and prudence to avoid any accident or injury therefrom; and if they believe, that plaintiff in so attempting to pass by said excavation was injured by being precipitated therein, which injury she might have avoided by the exercise of ordinary care and prudence, they will find for defendant.

Unless the jury believe from all the evidence in the case, that...