O'Brien v. Heman
| Decision Date | 08 June 1915 |
| Citation | 177 S.W. 805,191 Mo.App. 477 |
| Parties | JAMES O'BRIEN et al., Respondents, v. AUGUST HEMAN et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Thomas C. Hennings Judge.
AFFIRMED.
Judgment affirmed.
Rogers & Koerner for appellant.
(1) The alley here in question existed merely on paper. It had never been thrown open to the public for travel. Hence, the city was under no duty to make it safe for travel; and neither owners nor occupants of private property adjoining same were required to guard places on their land which may have been dangerous. Hunter v. Weston, 111 Mo. 176; Baldwin v. Springfield, 141 Mo. 205; Downend v Kansas City, 156 Mo. 60; Ely v. St. Louis, 181 Mo. 723; Conner v. Nevada, 188 Mo. 148; Benton v. St. Louis, 217 Mo. 687. (2) The owner of land upon which there is an excavation is under no duty to erect a fence between his property and adjoining private property. Overholt v. Vieths, 93 Mo. 422. Instruction c should, therefore, have been given. (3) A police officer has no authority on behalf of the city to order a landowner to guard his property. The testimony of plaintiff's witness Carroll was, therefore, immaterial and incompetent and its admission was error. (4) The conduct and remarks of plaintiff's counsel while addressing the court in the presence and hearing of the jury upon the propriety of giving the peremptory instructions asked by defendants, were improper and prejudicial to defendants. (5) The verdict of the jury is without substantial evidence to support it. (6) The verdict is so grossly excessive as to indicate passion and prejudice on the part of the jury. It should, therefore be set aside. Partello v. Railroad, 217 Mo. 645 661. (7) An instruction on the measure of damages should not state that the amount of the verdict should not exceed the amount claimed in the petition. If it does so, the question of excessive damages arise, the probable effect of the instruction will be taken into account. Lessenden v. Mo. P. Ry., 238 Mo. 247, 265; Stid v. Mo. P. Ry., 236 Mo. 382, 405.
Holland, Rutledge & Lashly for respondents.
(This brief covers O'Brien v. Adding Machine Co., post, also.)
(1) The alley in question was a public alley, dedicated and accepted but whatever the status of the alley as a public way or thoroughfare, the appellants are liable (a) whether it is a public alley with full obligations on the municipality to care for the same; (b) a public alley by common-law dedication, estopping these appellants from questioning the rights of the public therein; (c) a long used public passageway over the appellants' land, generally used by the public for many years with the consent of appellants, express or implied. (2) Where a strip of ground is dedicated by appellants' grantor twenty-one years before the accident by a recorded plat approved by the proper city officers, and appellants soon after took deeds bounding the land by the alley and referring to the plat; where the city passes an ordinance for the construction of a sewer through the alley and contracts for its construction, and the sewer is laid and used; where the city grants permits to erect telephone poles through the alley and the poles were erected; its police officers notify appellants to fence their quarry because dangerous to persons passing through the alley and send a written report of such notice to the chief of police in whose office it was kept on file; where during all this time the alley was used by the public by vehicles and traffic of all kinds, including coal wagons and automobiles, and where there was a solid line of sheds and fence facing the alley on one side, which can be reached in no other way, said strip will be considered a public alley, although not actually paved by the city and even though for a small space leading to Spring avenue there was no dedication, but a continuous strip over the private line had been long used for a public passageway along with the alley. Benton v. St. Louis, 217 Mo. 687; Buesching v. Gas Light Co., 73 Mo. 219; Drimmel v. Kansas City, 180 Mo.App. 339; O'Malley v. Lexington, 99 Mo.App. 695; Baldwin v. Springfield, 141 Mo. 205; City of Caruthersville v. Huffman, 171 S.W. 323; 1 Wood on Nuisances (3 Ed.), sec. 120; Elliott on Roads and Streets (2 Ed.), secs. 152-3. (3) Even if the city had no obligation with reference to the repair of the alley, the facts stated in paragraph I constitute a common-law dedication and the acceptance of deeds by the appellants from the same grantor who made the dedication, bounding the property by the alley and referring to the plat of dedication of the alley, estop these appellants from claiming that this was not a public alley as far as they were concerned. There is no possible theory on which these appellants could have closed up the alley or shut the public out from it. Heitz v. City, 110 Mo. 624; Drimmel v. Kansas City, 180 Mo.App. 339; Ragan v. McCloy, 29 Mo. 356; Rose v. St. Charles, 49 Mo. 509; Railroad v. Baker, 183 Mo. 322; Field v. Mark, 125 Mo. l. c. 215; Brown v. Carthage, 128 Mo. l. c. 17; Downend v. Kansas City, 156 Mo. 60; McGrath v. Nevada, 188 Mo. l. c. 107; Bauman v. Boeckler, 119 Mo. l. c. 200. (4) If the socalled alley was a common public alley then the fee to the middle of the alley was in the appellants for the reason that appellants' grantor who dedicated the alley and conveyed the same to the city, thereafter sold the quarry property to appellants, describing it as bounded on the north by the alley, and any abandonment of the alley or failure of any kind to effect dedication gave the appellants an absolute fee to the center, they in any event owning the fee to the middle of the alley subject only to the right of the public to use the surface for passage. City of Memphis v. Miller, 78 Mo.App. 67; Baker v. City of St. Louis, 7 Mo.App. 432; Betz v. Telephone Co., 121 Mo.App. 476; Christian v. City of St. Louis, 128 Mo. 115. (5) If the alley in question was not a public alley then the fee belonged to the appellants and they owed to the public who had been using the property as a right-of-way for a long time, with the knowledge of the appellants, the duty of not leaving unguarded excavations and pitfalls in the pathway. Schaaf v. Basket & Box Co., 151 Mo.App. 35; Chicago Junction Ry. v. Reinhardt, 139 Ill.App. 53; affirmed in 235 Ill. 576; Graves v. Thomas, 95 Ind. 361; Wheeler v. St. Joseph Stockyards & Terminal Co., 66 Mo.App. 260; Beck v. Carter, 68 N.Y. 283; Hanson v. Land & Water Co., 58 Wash. 6; Brinilson v. Chicago, Etc., R. R. Co., 144 Wis. 614; Matthews v. Seaboard Air Line Ry. Co. (S. Car.), 65 L.R.A. 286; Phipps v. Oregon, etc., Navigation Co., 161 F. 376; DeTarr v. Brewing Co., 61 P. 689; Allison v. Haner, 62 S.W. 932; Rooney v. Woolworth, 61 A. 366. On the same principle this obligation would rest upon the abutting property owners owning the fee to the middle of the alley, which was a public alley in all respects, but as to which the city had not accepted the obligation to repair. (6) An unguarded excavation near or extending into a public highway or a much traveled way used by the public is a nuisance for the maintenance of which all are liable who are responsible for its condition. Buesching v. Gas Light Co., 73 Mo. 228, and cases cited; Wiggin v. St. Louis, 135 Mo. 558; 1 Thompson, Negligence, secs. 945, 1228; Mathews v. Mo. P. Ry. Co., 26 Mo.App. 75; 29 Cyc. 1172; Loth v. Columbia Theatre Co., 197 Mo. 328; Bassett v. St. Joseph, 53 Mo. 290; Benton v. St. Louis, 248 Mo. 98. (7) Having tried their case upon one theory in the court below, appellants will not be heard upon another one here. Point II in appellant Burrough's brief is inconsistent with the instructions offered by it at the trial. Walker v. Owen, 79 Mo. 563; St. Louis v. Wright Contracting Co., 210 Mo. 491; Brier v. Bank, 225 Mo. 673; Koshkonong v. Boak, 173 Mo.App. 310; Dice v. Hamilton, 178 Mo. 81; Black v. Mo. P. Ry. Co., 172 Mo. 177. (8) Appellant's instruction number VI assumes the way in question to be a public alley. In that instruction the jury is informed "before you can find for plaintiffs, you must find and believe from the evidence that the public alley at the point where plaintiff's claim Francis slipped, was in such a dangerous condition that persons exercising ordinary care for their own safety could not have safely passed passed along the same." This commits appellants on the public character of the alley. (9) The Hemans cannot escape liability by claiming that if the Burroughs Company had fenced its land so as to guard this hole, the boy would not have fallen into their quarry, and the Burroughs Company cannot escape by claiming that if the Hemans had walled up their quarry, the boy would not have fallen beyond their land. The law of this State is well settled that if the negligence of two tort feasors combines to cause an injury, or if the accident would not have happened but for the concurring negligence of both parties, there can be a recovery against either or both, since the responsibility for a tort is several. Bassett v. St. Joseph, 53 Mo. 290; Hutchinson v. Richmond Safety Gate Co., 247 Mo. 71; Clark v. St. Jo., Etc., Ry. Co., 242 Mo. 570; The Joseph B. Thomas, 81 F. 578; City of Flora v. Pruett, 81 Ill.App. 161; Benton v. St. Louis, 248 Mo. 98; Pearce v. Kansas City, 156 Mo. 230; Newcomb v. Railroad, 169 Mo. 409; Vogelsang v. St. Louis, 139 Mo. 127. (10) If the owner lets premises with a nuisance upon them and the tenant allows it to remain they are both liable; the owner for creating it and both for not guarding it. Buesching v. Gas Light Co., 73 Mo. 219; Grogan v. Foundry Co., 87 Mo. 321; Mathews v. Ry. Co., 26 Mo. 75. (11) The parents are not limited to the value of services which...
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