O'Brien v. Burroughs Adding Mach. Co.

• Decision Date: 08 June 1915
• Docket Number: No. 14053.,14053.
• Citation: 177 S.W. 811,191 Mo. App. 501
• Parties: O'BRIEN et al. v. BURROUGHS ADDING MACH. CO. et al.
• Court: Missouri Court of Appeals

177 S.W. 811

191 Mo. App. 501

O'BRIEN et al. v. BURROUGHS ADDING MACH. CO. et al.

No. 14053.

St. Louis Court of Appeals, Missouri.

June 8, 1915.

Rehearing Denied June 22, 1915.

Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge.

Action by James O'Brien and another against the Burroughs Adding Machine Company and others. Judgment for the plaintiffs, and the Burroughs Adding Machine Company separately appeals. Affirmed.

Buder & Buder, of St. Louis, for appellant. Holland, Rutledge & Lashly, of St. Louis, for respondents.

NORTONI, J.

For a full understanding of the facts pertaining to the questions in decision in this appeal of the Burroughs Adding Machine Company reference is made to the statement accompanying the appeal of the Hemans, defendants, in the same case, that is, James O'Brien et al. v. August Henaan, et al., 177 S. W. 805 (decided to-day).

It is argued, first, that, as the defendant Burroughs Adding Machine Company did not create the nuisance that is, the quarry—and is in no wise connected therewith, but occupies the position merely of an adjoining proprietor, it is not liable to respond for the death of plaintiffs' son. It is true this defendant is in no wise connected with the quarry in which plaintiffs' son came to his death. It is true, too, it did not create such nuisance. Neither did this defendant create the slide, or runway, into which plaintiffs' son stepped while walking in the alley, and by means of which he was carried forward across the northwest corner of defendant's lot into the Heman quarry. Touching this, it appears that the runway commenced in the public alley probably seven or eight feet east of the northeast corner of the Heman property on which the quarry was located, and probably eight or nine feet north of the lot line of this defendant. But the runway or slide commencing at such point passed over the northwest corner of the lot owned by this defendant and into the quarry, for a portion of defendant's lot and also the alley had caved in. Adjoining proprietors north of the alley had thrown grass from their lawns into the mouth of the runway in the alley and thus concealed it. The little boy, passing the way immediately along the south side of the traveled road, stepped upon this new-mown grass, and disappeared at once, for he slid with the green grass, which gave way under his weight, instantly down the runway slide from the point in the alley described across the corner of defendant's lot into the quarry of the Hemans.

The rule declared in Baustian v. Young, 152 Mo. 317, 53 S. W. 921, 75 Am. St. Rep. 462, to the effect that an abutting owner is under no primary duty to the public to mend an adjoining street, is invoked and relied upon in support of the argument advanced, but we do not regard it relevant on the facts in judgment here. It is generally true, in the absence of legislative enactment on the subject, that an abutting landowner is not liable to travelers for injuries received by them because of a defect in the street adjoining his premises, unless such defect was caused by the act or fault of such owner, as stated in 2 Elliott, Roads and Streets (3d Ed.) § 898. But this is true because the street is in the custody and keep of the municipality, and the abutting owner is not liable for its dereliction unless he contributed by affirmative act, in which event he is, of course, a joint tort-feasor. But the instant case presents something more than a mere defect in the street, for such defect was but the opening of a runway across the corner of the lot of defendant into the quarry beside the highway. Obviously, this runway commencing in the alley and running across the northwest corner of defendant's lot for the distance probably of fifteen feet was quite as dangerous as the quarry itself, and therefore constituted a nuisance on defendant's lot adjacent and extending into the highway. This dangerous place defendant should have protected against by fence or wall or otherwise at its boundary line or other...