Bowie v. City of Kansas

• Decision Date: 31 January 1873
• Citation: 51 Mo. 454
• Parties: THOMAS C. BOWIE, JR., Plaintiff in Error, v. THE CITY OF KANSAS, Defendant in Error.
• Court: Missouri Supreme Court

51 Mo. 454

THOMAS C. BOWIE, JR., Plaintiff in Error,

v.THE CITY OF KANSAS, Defendant in Error.

Supreme Court of Missouri.

January Term, 1873.

Error to Jackson County Circuit Court.

Franklin and Napton, for Plaintiff in Error.

I. Where a motion in arrest of judgment is sustained and

the judgment arrested it is optional with the plaintiff as to whether he will amend his petition or not, and if he declines doing so the Court may dismiss his petition, and from this judgment of dismissal an appeal or writ of error will lie. (Frazier vs. Roberts, 32 Mo., 459.)

II. The judgment in this case was arrested upon the ground that there was no allegation in the petition charging it to be the duty of the City to keep the sidewalks or streets in repair, or in a safe condition. Such an allegation is not essential to the cause of action, and the petition is sufficient without it.--(Tuttle vs. The City of Topeka, 5 Kansas, 311; Laithe vs. McDonald, 7 Kansas, 254; Mandersheid vs. The City of Dubuque, Law Reg. for Aug. 1871, p. 526.)

III. But if such an allegation was essential or properly among the grounds of the action, still, the defect is cured by the verdict. The liability of the City and its duty to keep the streets and sidewalks in a safe condition is a matter which is necessarily inferred from the allegations of negligence in the petition. (Frazier vs. Roberts, 32 Mo., 459; Shaler vs. Van Wormer, 33 Mo., 386; Richardson vs. Farmer, 36 Mo., 41; House vs. Lovell, 45 Mo., 381.)

IV. The Charter of the City, a public act, and of which every Court in the State will take judicial cognizance, gives the corporation entire and exclusive control of its streets and sidewalks, and so long as any parcel of land is a street belonging to a city, and by its charter it is clothed with exclusive control of it, just so long it is bound to keep it in a safe condition. The charter of defendant, a public act (Sess. acts, 1868, p. 213,) gives the defendant exclusive control of its streets. We hold that in cases of this character against a city incorporated by a public act, it is only necessary for the plaintiff to allege and prove that the injury resulted from a defect, negligently and carelessly permitted, in a street (without fault on his part), and the charter settles the rest. The duty of the city with reference to its streets can only be shown by the charter itself, and the court was bound to take judicial cognizance of it.

V. The motion in arrest pre-supposes and admits that the verdict is correct. (Farmers' Bank of Missouri vs. Bayliss, 41 Mo., 274; McComas vs. State, 11 Mo., 116.)

J. B. Turnback, for Defendant in Error.

I. The petition is bad, because it does not disclose any duty owed by the city to Thomas C. Bowie, deceased, respecting the sidewalk on which he traveled, or the excavation into which he fell.

It was essential to aver in the petition, that the opening or excavation was dangerous, so that to render the street reasonably safe for travel a fence should have been put up, a light kent burning, or some other precaution used to warn person of the danger. It was also essential to show that the city caused the excavation to be made, or had notice of its exis tence. The city does not insure its streets to be safe for public use, nor against accidents thereon. (Dill. on Munic. Corp., (1st ed.,) p. 753 and following, §§ 789, 790.)

An averment of duty owing, or of the existence of facts out of which the duty arose, is wholly wanting and is fatal. (Richardson vs. Farmer, 36 Mo., 45; Garner vs. McCullough, 48 Mo., 318; Moss vs. The Pacific Rail Road, 49 Mo., 170; City of Buffalo vs. Holloway, 7 N. Y., 498.)

II. There is no final judgment in this action, either in substance or form. The petition is simply dismissed, according to the bill of exceptions, or the cause is dismissed, as per record entry.

There is no judgment for costs, nor that plaintiff take no thing by his suit. (Garesche vs. Emerson, 31 Mo., 258; Bog gess vs. Cox, 48 Mo., 278)

VORIES, Judge, delivered the opinion of the court.

The plaintiff in error brought his suit in the Jackson County Circuit Court on the 21st day of January, 1870. The plaintiff was a minor, and sued by his guardian to recover damages under the third section of the act concerning “Damages and Contributions in actions of Tort,” (1 W. S., 519.) The petition upon which the trial was had, charges that the defendant is a municipal corporation within the State of Missouri that the plaintiff is a minor under the age of twenty-one years, and that he is the only child of the late Thomas C. Bowie, Senior, and Margaret G. Bowie. “That on the 29th day of March, 1869, his said father, the late Thomas C. Bowie, Senior, was walking along on the sidewalk on one of the principal and most traveled streets, that is Main street, of defendant, (The city of Kansas) and in the evening of said 29th day of March, 1869 after dark, the said Thomas C. Bowie, Senior, when so walking along said sidewalk on said Main street, on the west side of said street, near the junction of said street and Delaware street, and when he, the said Thomas C. Bowie, Senior, was using ordinary care and diligence, fell into an opening or excavation in said sidewalk and was thereby killed; that said opening or excavation in said side walk at the time said Thomas C. Bowie so fell into the same and was thereby killed, was negligently and carelessly suffered to be left open and unguarded by the defendant the City of Kansas.”

It is then stated that Lewis Saunders is his guardian duly appointed, &c., and that the mother of plaintiff is living and has failed to sue for said wrongful act, within six months following the death of the father of plaintiff as aforesaid, as she might have done by the statntes of this State in such cases provided; that by reason of the death of his said father, he has sustained damages in the sum of five thousand dollars under the statutes of this State in such case made and provided, for which judgment is prayed.

The answer denies that the opening or excavation referred to, was at the time that Bowie was killed negligently and carelessly suffered by the defendant to be left open and unguarded; denies that said Bowie was at the time using ordinary care and diligence while passing along said street in the City of Kansas and at the time said Bowie was killed. But defendant states that on the 29th day of March, aforesaid, the said opening or excavation was well, carefully, and securely guarded by the City of Kansas, and that the said Bowie fell into said excavation wholly by his own negligence and carelessness.

The affirmative matter in the answer was put in issue by a replication.

A trial was had upon the issues made by those pleading, a verdict rendered for the plaintiff for five thousand dollars, upon which judgment was rendered by the court. The defendant filed its several motions for a new trial and in arrest of judgment.

The motion in arrest is stated to be for the reason that the petition does not state facts sufficient to constitute a cause of action, in that it is not shown that defendant is in any manner responsible for the condition of the sidewalk named in the petition, or for the excavation or opening therein.

That said petition does not refer to any act or statute of Missouri whereby defendant was incorporated, and that there is no public act for said purpose.

That the cause is founded on a statute of the State and no reference thereto is made in the petition. This motion in a rest of judgment was by the court sustained. To which ruling of the court, the plaintiff excepted.

The court then notified the plaintiff that leave would be granted to amend his petition. Plaintiff refused to amend his petition, and the cause was dismissed, to which plaintiff again excepted, and has sued out his writ of error and brought the cause to this court.

It appears from the record in this case that the defendant made several objections to parts of the evidence, and that it objections were overruled, and that it also made objection to an instruction given by the court, and that the defendant at the time excepted to the opinion of the court in overruling its several objections. Yet, as the defendant has not brought the case here, and is not complaining of the action of the court, these matters are not here for consideration.

The only questions presented for our consideration by either party are first: whether there is any final judgment in this cause from which an appeal or writ of error will lie;--second; did the Circuit Court of Jackson County err in sustaining the defendant's motion in arrest of the judgment, and in dismissing the plaintiff's cause?

It is urged by the defendant in error, that there is no final judgment in the cause from which a writ of error will lie.

The entry on the record is as follows:

“Now at this day come the parties aforesaid by Attorneys, and the motion heretofore filed in arrest of judgment in this cause...