Beck v. Ferd Heim Brewing Company

• Decision Date: 19 February 1902
• Citation: 66 S.W. 928,167 Mo. 195
• Parties: BECK, Appellant, v. FERD HEIM BREWING COMPANY
• Court: Missouri Supreme Court

66 S.W. 928

167 Mo. 195

BECK, Appellant, v. FERD HEIM BREWING COMPANY

Supreme Court of Missouri, First Division

February 19, 1902

Appeal from Jackson Circuit Court. -- Hon E. P. Gates, Judge.

Affirmed.

L. A Laughlin for appellant.

(1) The authorities are uniform that the liability of a municipal corporation for a defect in a sidewalk, as well as that of an abutting property-owner for permitting an obstruction on the sidewalk in front of his property, is because they are maintaining a nuisance. Dillon on Mun. Corp. (4 Ed.), sec 1032; Wood on Nuisances, sec. 120; Congreve v Smith, 18 N.Y. 82. The courts of this State are in harmony with the foregoing principle, and place the liability of an abutting property-owner on the ground that he is guilty of maintaining a nuisance. Gordon v. Peltzer, 56 Mo.App. 603; Mancuso v. Kansas City, 74 Mo.App. 144; Buesching v. Gas Light Co., 73 Mo. 219; Wiggin v. St. Louis, 135 Mo. 566; Grogan v. Foundry Co., 87 Mo. 329. (2) The next inquiry will be as to what is a legal nuisance. "A nuisance can not arise from the neglect of one to remove that which exists or arises from purely natural causes. But when the result is traceable to artificial causes, or where the hand of man has in any essential measure contributed thereto, the person committing the wrongful act can not excuse himself from liability upon the ground that natural causes conspired with his act to produce the ill results." Wood on Nuisances (3 Ed.), sec. 116; Livesey v. Schmidt, 96 Ky. 441. (3) "Any act of an individual, although performed upon his own soil, that detracts from the safety of travelers upon a public street or highway, is a nuisance, and actionable or indictable as such." Wood on Nuisances (3 Ed.), sec. 120; Garland v. Towne, 55 N.H. 55; Smethurst v. Cong. Ch., 148 Mass. 261; Shephard v. Creamer, 160 Mass. 496; Shipley v. Fifty Associates, 101 Mass. 251; Walsh v. Mead, 8 Hun 387; Hannem v. Pence, 40 Minn. 127; McConnell v. Bostelmann, 72 Hun 238; Thuringer v. Railroad, 82 Hun 33. An overhanging wall is a nuisance. Miles v. Worcester, 154 Mass. 511; Langfeldt v. McGrath, 33 Ill.App. 158. Where the walls of a building destroyed by fire are negligently permitted to stand, and fall into the street, injuring a traveler, the property-owner is liable. Franke v. St. Louis, 110 Mo. 516; Grogan v. Foundry Co., 87 Mo. 321; Church of Ascension v. Buckhart, 3 Hill 193. And the property-owner is liable if the wall or any portion of it falls into the street by reason of decay or other natural causes. Alms v. Conway, 78 Mo.App. 490; Mullen v. St. John, 57 N.Y. 569; Murray v. McShane, 52 Md. 217; Jager v. Adams, 123 Mass. 26; Khron v. Brock, 144 Mass. 516; Wilkinson v. Detroit S. & S. Wks., 73 Mich. 405; Swanson v. Elec. Light & C. Co. (Wis.), 71 N.W. 1098; Kappes v. Appel, 14 Bradw. (Ill. App.) 170; Coal Co. v. Clemmitt, 49 N.E. 38.

Ben. T. Hardin for respondent.

It seems strange, indeed, that this court should be called upon at this late day to again assert the law to be that: "An abutting owner, as such, owes no duty to maintain the street or sidewalk in front of his premises, and is not responsible for any defects therein which are not caused by his own wrongful act." And whatever may be his obligation to the city when ordered by it to build or repair a sidewalk, and whatever may be his liability for a defective construction when he undertakes to do it, he is under no obligation to the public to keep the sidewalk in front of his premises in repair or clean and free from obstructions, and is not liable for a failure to do so. This is the settled law of this State, as laid down in the following well-considered cases: Norton v. St. Louis, 97 Mo. 537; St. Louis v. Ins. Co., 107 Mo. 92; Independence v. Slack, 134 Mo. 66; Sanders v. Railroad, 147 Mo. 411; Banstian v. Young, 152 Mo. 317; Holwerson v. Railroad, 157 Mo. 216.

OPINION

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 feet of lot four hundred and one in block thirty-six 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 on to 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 thirtieth 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 in time to have averted the injury to plaintiff hereinafter complained of.

"For his cause of action plaintiff states that on the evening of said day he was walking in an easterly direction along the sidewalk on the north side of Fifth street, between Oak and Locust streets in said city. That it was raining and the deposit of clay earth on said sidewalk at the point hereinbefore mentioned was very slippery. Plaintiff further states that on arriving at said point his feet slipped on the sidewalk owing to the deposit of clay earth thereon, and plaintiff...