Britton v. City of St. Louis
| Decision Date | 27 February 1894 |
| Citation | 25 S.W. 366,120 Mo. 437 |
| Parties | Britton v. City of St. Louis et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.
Affirmed.
W. C Marshall for appellant, city of St. Louis.
(1) There is no evidence to support the verdict. (2) The trial court erred in giving erroneous instructions asked by the plaintiff. Courts should tell the jury what issues are to be tried and not refer them to the pleadings. Such instructions are erroneous. Cocker v. Cocker, 2 Mo.App. 451; Edelmann v. Transfer Co., 3 Mo.App. 505; Remmler v. Shenuit, 15 Mo.App. 192; Hays v. Railroad, 15 Mo.App. 584: Proctor v. Loomis, 35 Mo.App. 482; Flieschman v. Miller, 38 Mo.App. 177. (3) Plaintiff's third instruction is erroneous in authorizing the jury to disregard the entire testimony of any witness believed to have knowingly sworn falsely to any material fact. There was no evidence authorizing the instruction. Bank v. Murdock, 62 Mo. 70; State v. Brown, 64 Mo. 367; White v. Maxey, 64 Mo. 552; Fath v Hake, 16 Mo.App. 537; Smith v. Railroad, 19 Mo.App. 120; Batterson v. Vogel, 10 Mo.App. 235. (4) And such an instruction is not harmless where there are two issues in a case which the jury might decide either way. Fath v. Hake, 16 Mo.App. 537; Evans v. Railroad, 16 Mo.App. 522. (5) There being no controversy in this case that at the close of business hours on December 23, the contractor covered over the excavation, and placed a red signal light on the embankment, neither the contractor nor the city can be held liable thereafter, even if the light and the cover over the excavation were removed. Bell v. Independence, 41 Mo.App. 469; Myers v. Kansas City, 108 Mo. 480. (6) The verdict in this case is excessive.
E. B. Sherzer for respondent.
(1) Defendants' instructions for nonsuit were properly refused. There was testimony to go to the jury and abundant evidence to support the verdict. (2) Plaintiff's instruction number 1 did not refer the jury to the petition to find the issue. Corrister v. Railroad, 25 Mo.App. 619. (3) The negligence charged was properly left to the jury. Russell v. Town, 74 Mo. 480. (4) Plaintiff's instruction number 4 was properly given. So plaintiff's third instruction was justified by the evidence in the case. Seligman v. Rogers, 113 Mo. 642. (5) Defendants' refused instructions were properly denied. (6) The damages were not excessive. Gorham v. Railroad, 113 Mo. 408; Murray v. Railroad, 101 Mo. 236; Schmitz v. Railroad (Mo. App.) not yet reported; Conway v. City, 119 Ill. 489; Railroad v. Hill, 34 N.E. 646; Railroad v. Yarborough, 83 Ala. 238; Burdoin v. Trenton, 22 S.W. 728; Rosenkranz v. Railroad, 108 Mo. 9; Gurley v. Railroad, 104 Mo. 211; Darby v. Knapp, 2 Mo.App. 486; Craig v. Durette, 1 J. J. Marsh. 366.
This is an action for personal damages, against Killoran, a contractor, and the city of St. Louis, for negligence in leaving a deep and dangerous excavation, in a public alley in said city, unguarded and exposed, whereby plaintiff was precipitated into it on the night of December 23, 1889, and received permanent injury to his left knee and suffered loss of time, being a day laborer, and his physician's bill, bodily pain and mental anguish to his damage in the sum of $ 10,000. The answer was a general denial and contributory negligence. The plaintiff recovered a judgment against both the contractor and the city for $ 3,500.
The place where the injury occurred was at the intersection of the north and south alley with the east and west alley in city block number 3447, being between Bell avenue on the north, Morgan street on the south, Vandeventer avenue on the east, and Sarah street on the west. Neither alley extended all the way through the block, but ran only to this intersection at right angles, just west of Vandeventer, forming practically one alley. Immediately on the southwest corner of Vandeventer and Bell avenues there was a vacant lot having a front of about one hundred feet on Bell street, and extending southwardly about one hundred and fifty-five feet to the twenty-five foot lot which fronted Vandeventer avenue and the rear of which was the east line of the north and south alley and the eastern terminus of the east and west alley. Immediately west of the one hundred foot lot, Martin Connelly owned thirty feet fronting Bell avenue, and which extended to the twenty-five foot lot which fronted Vandeventer avenue. Connelly's lot did not abut either of said alleys, but his west line was eight feet six inches east of the intersection of the east line of the north and south alley with the north line of the east and west alley. Along Connelly's west line there was a board fence extending from Bell avenue to a line coincident with the prolongation of the north line of the east and west alley. The depot of the St. Louis Cable and Western Railway was located immediately west of the north and south alley, and immediately south of the east and west alley and fronted on Morgan street. In order to go from the depot to the corner of Bell and Vandeventer avenues, the plaintiff and other employees of the railroad were in the habit of going into the north and south alley, thence cutting across the twenty-five foot lot which fronted on Vandeventer avenue, to the corner of the fence on the west of Connelly's lot, thence across Connelly's lot, and diagonally across the one hundred foot lot aforesaid.
On the night of December 23, 1889, plaintiff, an employee of, and laborer on, the Narrow Gauge for three years, who, with three other employees (Miller, Washoe and Horning), had, on invitation, made a friendly visit to the roadmaster (Auster) at his home, north beyond Bell and near Vandeventer, was, with them, near 12 at night, returning to take the last train home, which left at 12 o'clock. Having but a few minutes to spare, they hurried along south on Vandeventer to southwest corner near Bell, when hearing engine bell ringing, and fearing to miss train, Britton and Miller started across the plat of vacant lot as nearest route, and which they had frequently traveled before, making for the gate on the east and west alley, opening beyond roundhouse on the tracks of Narrow Gauge. The others went down Vandeventer to Morgan, then up to depot. Though dark, being from frequent traveling thereon perfectly familiar with location and pathway, which "showed up a little white" in darkness (Britton in the lead), they hurried over the path to Connelly lot on which it forked, took "left hand" path running near southeast corner of Connelly lot, then on south adjoining lot, and approaching mud hole thereon (the water in which "glimmered"), skirted the same to avoid west fence which lay north thereof (location of which they fixed by mud hole). Just after passing the mud or water hole (which they did between it and fence) a few steps, Britton fell into an excavation, the existence of which, up to that time, was unknown either to him or his companions.
Through these alleys there was a public sewer, with a manhole some five or six feet from the east line of the alley. About the sixteenth of December, defendant Killoran, having a contract therefor, began to excavate for a vault, on the rear end of Connelly's lot and to dig a trench from the vault to the corner of the fence and by permission of the owner of the twenty-five foot lot, he dug the trench along the corner of said lot extending from the corner of the fence to the east line of the east and west alley, thence through the alley, under the permit from the city, to the manhole. Fahey testified he commenced the trench in the alley on the twenty-second day of December and finished the twenty-third. He dug the trench from three to seven feet deep, according to the various estimates. Plaintiff and Miller, who accompanied him, testified that plaintiff fell into this ditch in the alley about two and one-half feet from the manhole; that they knew where the manhole was, and Miller testified he had hold of it when assisting plaintiff out of the ditch.
There is no dispute that the manhole was in the alley; that the ditch was dug to connect it with Connelly's lot; nor is there any dispute that plaintiff fell and was seriously hurt. The controversy arises over whether plaintiff fell into that portion of the ditch in the alley, or the part that was on the private ground, and as to this the evidence of plaintiff and Miller, the only witnesses who were present, is that he fell in the alley. The main issue was whether the excavation was covered, and had danger lights.
On this point the evidence is irreconcilable. Plaintiff's witnesses say there were no lights at the time he fell and none next morning, and it was not covered at all. Defendant's witnesses say it was covered and the lights were put out at 5 o'clock, and were burning next morning.
The assignments of error are: First. There is no evidence sufficient to support the verdict. Second. The circuit court erred in admitting incompetent evidence offered by plaintiff. Third. The circuit court erred in giving improper and erroneous instructions asked by plaintiff, and refusing proper instructions asked by the city. Fourth. The judgment is excessive.
I. The first point is one that might, and doubtless was, urged by counsel to the jury, that plaintiff fell into the ditch on the private lots, but there was...
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