Benton v. City of St. Louis

• Decision Date: 28 February 1913
• Citation: 248 Mo. 98,154 S.W. 473
• Parties: BENTON et ux. v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

154 S.W. 473

248 Mo. 98

BENTON et ux. v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

February 28, 1913.

1. APPEAL AND ERROR (§ 1097) — SECOND APPEAL — LAW OF CASE.

As a general rule, where on a second appeal the facts and pleadings are the same, the first decision is the law of the case on points ruled.

2. MUNICIPAL CORPORATIONS (§ 791) — NEGLIGENCE — NOTICE.

Where a city negligently permitted a sink hole close to an unguarded and insecure sidewalk, it was chargeable with notice that the sink hole was filled with water after a storm, at which time a child was drowned in it, though it did not know that that particular storm had filled the hole with the water.

3. NEGLIGENCE (§ 59) — IMPLIED KNOWLEDGE.

If a reasonable man can foresee the probability of a given consequence, that fact is enough to cause liability; what a man knows and what he ought to know being equivalent in law.

4. NEGLIGENCE (§ 59) — IMPLIED KNOWLEDGE.

Liability for negligence does not hinge on whether, by reasonable prudence, the very injury complained of should have been foreseen; but a party may be held liable for anything which, after the injury is complete, appears

to have been a natural and probable consequence of his act or omission.

For other definitions, see Words and Phrases, vol. 5, pp. 4743-4764; vol. 8, pp. 7729-7731.]

5. MUNICIPAL CORPORATIONS (§ 800) — NEGLIGENCE — DEFENSES — ACT OF GOD.

Where a child was drowned in a sink hole negligently placed near an insecure and unguarded sidewalk, the city was not relieved from liability by the fact that a storm, which caused the hole to fill with water, combined with the city's negligence to cause the accident.

6. TRIAL (§ 260) — INSTRUCTIONS.

Where, in an action against a city for the death of a child from falling into a sink hole, the accident being due to an unsafe sidewalk, the court instructed that defendant was not liable for failure to erect a railing along the sidewalk unless a person of ordinary care and prudence would have erected such railing, an instruction, that defendant was not liable unless a person of ordinary care would have considered the sidewalk unsafe, was properly refused as covering merely the same ground.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by H. W. Benton and wife against the City of St. Louis. From a judgment for plaintiffs, defendant appeals. Affirmed.

Lambert E. Walther and William E. Baird, both of St. Louis, for appellant. Collins, Barker & Britton, of St. Louis, for respondents.

LAMM, J.

This is a second appeal. See Benton v. St. Louis, 217 Mo. 687, 118 S. W. 418, 129 Am. St. Rep. 561, for the first, where a full statement may be found. Recovery is sought on the theory that on a street of defendant there was a wooden sidewalk; that close thereto in the street and extending under the sidewalk was a large, deep excavation, a sink hole; that there was no rail on the sidewalk protecting travelers; that the sidewalk boards were loose and insecure, etc. — all of which facts were known to defendant, or might have been known by due diligence, etc.; that the excavation was filled with water even with the sidewalk; that in the particulars aforesaid the street and sidewalk were in an unsafe condition and has been negligently allowed to remain in that condition; and that the infant son of plaintiffs, George, aged seven years, on a certain day in May, 1905, stepped or fell from the sidewalk into the excavation and was drowned. When the case was here before, we held that the evidence made a case for the jury, provided the place was a public street; that contributory negligence could not be imputed to the infant as a matter of law; moreover, that there was evidence from which the jury could have determined the controverted question of street or no street against defendant. A nonsuit having been forced at the first trial because of the announced determination of the court to give an instruction in the nature of a demurrer to the evidence, we ruled that such demurrer would not lie. When the case went down, defendant filed an amended answer. (Note: Up to that time it had stood on a general denial.) Its amended answer was: (1) A general denial; (2) a plea of contributory negligence on the part of the infant; and (3) the contributory negligence of the custodian of the infant, to wit, the mother, Eva A., one of plaintiffs. Verdict and judgment for plaintiffs for $2,250. Defendant appeals.

Any material facts not appearing in the first opinion that may be necessary to an understanding of propositions advanced by appellant on the second appeal will appear in connection with the determination of those propositions in their order. The general rule being that on second appeal, where the facts are the same and the pleadings relating to those facts are the same, the first decision becomes the law of the case on points ruled (except in exceptional and well-marked circumstances), and we will not again notice questions so settled; the applicable maxims being: Concerning similars the judgment is the same; from similars to similars we are to proceed by the same rule; nothing in law is more intolerable than to rule a similar case by diverse law. Indeed, as we gather, appellant does not endeavor to disturb or unsettle the rulings in the first case. It limits its assignment of error to the following propositions: First. In giving plaintiffs' first instruction, because, although the sidewalk or highway may have been in defective condition, yet, if the defect or condition arose from concurrent causes, the city is not liable unless it has notice of both causes in time to supply a remedy. Second. In refusing defendant's second instruction, because the city was only required to use reasonable care in making its sidewalks safe for pedestrians, and its liability is not extended to an anticipation of unusual or extraordinary circumstances. Third. In refusing defendant's fifth instruction, because, though a defect exist in a street, the defective condition must appear to be dangerous before an action lies — this in the light of all the circumstances. The facts being substantially the same on the second appeal as on the first, and plaintiffs being entitled to the verdict of a jury, with the question of the contributory negligence of the infant set at rest in the first case, and having got such verdict, we may state in passing that the question of the contributory negligence of the infant's mother and the question of street or no street were well submitted and found adversely to defendant. So much is impliedly confessed.

I. Plaintiffs' first instruction, being long, will not be reproduced. The part pertinent to our inquiry runs: "* * * And if you further believe from the evidence that the said street and sidewalk were in a dangerous and defective condition, which was liable to occasion injury to persons in the usual and ordinary use of said street, and that this condition was known to defendant, or that said street had remained in such condition for a sufficient length of time before the death of the said George Benton to enable the officers and agents of the defendant, by the exercise of ordinary care, to discover said dangerous and defective condition and to remedy the same before said death, and if you further believe that the death of said George Benton was caused by the said dangerous and defective condition of said street and sidewalk, and if you further believe that the said George Benton was then and there in the exercise of the same care as is customarily exercised by persons of ordinary prudence of similar age and under like circumstances, then, if you so find the facts to be, your verdict must be for the plaintiffs."

In aid of the consideration of the criticism leveled by appellant at this instruction, we reproduce the pertinent part of a photographic picture of the locus, put in evidence by defendant, thus:

The sink hole was a natural drain. At some uncertain time a manhole or sewer's mouth was constructed, seen at the left side of the picture hardby the sidewalk. The lay of the land in the region was such that storm water converged at this manhole. As we gather, the erosion or eddy of this storm water caused, or helped cause, this sink hole. At some time the hole had been filled or partly filled by the city, and then the rush or whirl of the water of some subsequent heavy rainfalls would wash another sink hole. At the time in question, the hole was, say, five feet deep close to the sidewalk. On the day the lad drowned there had been a heavy rain. It was an extraordinary rain, but there was no evidence that such rains as this did not occur at intervals in St. Louis and were not to be expected in the natural order of things. The capacity of the manhole was not sufficient to carry such water away, and on the date in hand, as before in such rains, the hole was not only brimming full, but froth, straw, etc., gathered close to the sidewalk and made it difficult to tell where the edge was; that is, where water...