Beck v. Ferd Heim Brewing Co.

• Decision Date: 19 February 1902
• Citation: Beck v. Ferd Heim Brewing Co., 167 Mo. 195, 66 S.W. 928 (Mo. 1902)
• Parties: BECK v. FERD HEIM BREWING CO.
• Court: Missouri Supreme Court

66 S.W. 928

167 Mo. 195

BECK v. FERD HEIM BREWING CO.

Supreme Court of Missouri, Division No. 1.

February 19, 1902.

NEGLIGENCE — PLEADING — DEFECTIVE SIDEWALKS — PERSONAL INJURIES — ABUTTING OWNER — LEGAL DUTY.

A petition alleging that defendant was the owner of property on which was an embankment about 20 feet high, adjacent to a public street; that for some distance along the frontage of the street no retaining wall had been erected by defendant, and, as a consequence, earth had fallen on the sidewalk, causing injury to plaintiff, a traveler, — does not state a cause of action, for an abutting owner owes no duty to maintain the sidewalk in good order, and is not responsible for any defects which are not caused by his own wrongful act.

Appeal from circuit court, Jackson county; E. P. Gates, Judge.

Action by Lewis C. Beck against the Ferd Heim Brewing Company. From an order refusing to set aside a nonsuit, plaintiff appeals. Affirmed.

L. A. Laughlin, for appellant. Ben. T. Hardin, for respondent.

BRACE, P. J.

On the trial of this cause the defendant objected to the introduction of any evidence under the petition on the ground that it did not state facts sufficient to constitute a cause of action. The objection was sustained. The plaintiff took a nonsuit with leave, and, his motion to set the same aside having been overruled, he appeals.

So much of the petition as is relied upon for a statement of his cause of action is as follows: "Plaintiff states that the defendant is a corporation organized and existing under and by virtue of the laws of the state of Missouri, and is the owner of the following described real estate, situated in Jackson county, Missouri, to wit: The east eighty-five (85) feet of lot four hundred and one (401) in block thirty-six (36) of Old Town, an addition to the city of Kansas (now Kansas City); that said real estate is situated at the northwest corner of Fifth and Locust streets, in said city, and has a frontage of eighty-five feet on Fifth street; that a plank sidewalk extends along Fifth street in front of said real estate of defendant and adjacent to said sidewalk on the side of the property line, and upon said real estate is an embankment of earth about twenty feet high. Plaintiff states that for a portion of the way along the frontage of said real estate on Fifth street a retaining wall has been built for the purpose of keeping the earth from said embankment from sliding down on said sidewalk, but for a distance of about thirty feet back from said corner no such wall exists. Plaintiff states that, in consequence of the failure and neglect of defendant to erect a barrier to keep the earth from sliding down from said embankment onto said sidewalk, earth had run down from said embankment, and was deposited on said sidewalk, at the time hereinafter mentioned, at a point about thirty feet west from said corner, and where said retaining wall stops. * * * Plaintiff further states that on the 30th day of April, 1898, and for a long time prior thereto, there was a deposit of clay earth on said sidewalk at said point, which came from said embankment, and that the same was known to defendant, or might, by the exercise of ordinary care and prudence, have been known to defendant...