Buttron v. Bridell

• Decision Date: 31 May 1910
• Citation: 129 S.W. 12,228 Mo. 622
• Parties: BUTTRON et al. v. BRIDELL et al.
• Court: Missouri Supreme Court

129 S.W. 12

228 Mo. 622

BUTTRON et al. v. BRIDELL et al.

Supreme Court of Missouri, Division No. 1.

May 31, 1910.

1. NEGLIGENCE (§ 119)—PLEADING AND EVIDENCE.

To show that the lime pit maintained in a street, into which plaintiff's child fell, and the surroundings, were, as alleged in the petition, attractive to children, evidence that children had been seen playing around and near the pit for several days prior to the accident is admissible, though the fact of their having been so seen was not alleged.

2. EVIDENCE (§ 5)—JUDICIAL NOTICE.

Judicial notice will be taken that a lime pit maintained in a street will attract children; this being matter of common knowledge.

3. PLEADING (§ 127)—ADMISSIONS IN ANSWER.

The answer, in an action for death of a child from falling into a lime pit maintained in a street, by pleading that deceased had been warned to stay away from the pit on account of its dangerous condition, and that his parents were guilty of contributory negligence for not having cautioned him about these dangers, admits that the pit was dangerous.

4. APPEAL AND ERROR (§ 1051)—HARMLESS ERROR—ADMISSION OF EVIDENCE.

Any error in admitting an opinion that a pit maintained in a public street of a great city, filled with boiling lime and water, is a dangerous thing to children, is harmless; it being matter of common knowledge.

5. MUNICIPAL CORPORATIONS (§ 788)—DANGERS IN STREET—NOTICE—GRANTING PERMITS.

The granting by a city of a permit to maintain a lime pit in a street charges it with notice of the use to which it will be put, and of the natural and usual dangers incident to such use, so that actual knowledge thereof does not have to be brought home to it, to make it chargeable with negligence in failing to cause it to be covered at night.

6. TRIAL (§ 339)—VERDICT—AMENDMENT.

The verdict for plaintiffs in an action against joint tort-feasors, after finding the issues for plaintiffs, and assessing the damages at $1,700, provided further "to be paid in equal amounts of $850 by defendants." Held, that this provision being without the power of the jury, and therefore surplusage, there was no error in having the foreman strike it out in open court.

7. APPEAL AND ERROR (§ 1078)—ABANDONMENT OF ERROR.

No reference being made in appellant's brief to an alleged error, it will be considered abandoned.

Appeal from St. Louis Circuit Court; Robt. M. Foster, Judge.

Action by Arthur C. Buttron and another against John C. Bridell and another. Judgment for plaintiffs. Defendants appeal. Affirmed.

This suit was brought by the plaintiffs to recover of the defendants the sum of $5,000 damages for their alleged negligence in maintaining in one of the public streets of the city of St. Louis an illegal obstruction, namely, a lime pit filled with hot lime, into which their son, nine years of age, fell and was scalded to death. A trial resulted in a judgment for the plaintiffs for the sum of $1,700, from which the defendants appealed.

The petition was in the usual form, with the following charge of negligence, as appears in the respondents' statement of the case. "Defendants are charged with negligence `in failing to provide covering for said pit, and proper and necessary guards around the same'; and are further charged with negligence, in that a loose board was left lying in such a way that one end rested on the street and the other end projected over the lime pit, `and furnished a means of ascending from said street to the top of said pit'; that these conditions were highly dangerous and were attractive to children lawfully on the said street and playing in the vicinity thereof; that these conditions had existed for such a length of time that the defendant knew, or by the exercise of ordinary care could have known, of the same; that plaintiffs' child, nine years of age, while playing in the street, was attracted to the lime pit, ascended the loose board, and fell into the boiling slacked lime, and was scalded to death." The answer was a general denial, and that deceased had been warned to keep away from the pit, and a plea of contributory negligence an the part of the plaintiffs for not cautioning the boy against the dangers of the pit.

The facts are few, and are practically undisputed. Under a permit duly issued by the city, the defendant Bridell constructed and maintained for 12 days, in one of the public traveled streets of that city, a lime pit, about 30 feet in length, extending into the street a few feet beyond the center line thereof. The pit was several feet deep and was used for slacking lime, which was mixed in a box erected over the pit, from which the boiling mixture ran into and remained in the pit. The pit was left uncovered, and no guards were erected to protect pedestrians on the street from running against or from falling into it. The pit had been used for slacking purposes for several days prior to the accident. The plaintiffs' evidence, in addition, tended to show that they were husband and wife; that the deceased was their minor son; that a loose plank was permitted to rest with one end on the street and the other projected upward and over the open lime pit, which furnished an easy means of ascent from the street to the top of said box; that the place was attractive to children; that plaintiffs' child and other children of the neighborhood had been playing about the pit from the time it was constructed down to the date of the accident; that a policeman passed down the street by the pit a few hours previous to the accident, which occurred about 4 o'clock p. m. on July 12, 1906. In playing about the premises the deceased child walked up the inclined board to the top of the pit, which turned with him, and he fell into the boiling mixture, and was scalded to death. The defendants' evidence tended to show that the pit was constructed and maintained by Bridell in connection with the construction of certain buildings on abutting property; that there was no board leading from the street to the top of the pit; that a policeman did not pass by the pit a few hours previous to the accident; that the pit and lime box used in this instance was the usual and customary means employed by plasterers; and that it was impracticable to erect guards around such pits, as any barrier which would keep out trespassers would also prevent the unloading of sand into the pit. Such additional facts as may be necessary for a proper understanding of the legal propositions presented will be noticed during the course of the opinion.

Assignments of error: (1) The court erred in permitting witnesses to testify that children had been seen playing around and near the lime pit prior to the accident. (2) The court erred in permitting witness for plaintiffs to testify that the lime pit was "dangerous." (3) The court erred in submitting to the jury, in plaintiffs' instruction 1, as one of the issues in the case, the question whether or not children were accustomed to play near and around the lime pit. (4) The court erred in refusing instruction 11 offered by the city. (5) The court erred in permitting the foreman of the jury to alter the verdict and in accepting the same when so altered, without first polling the jury, or at least securing their assent, and without directing the jury to deliberate concerning such alteration. (6) The court erred in permitting plaintiffs' counsel in course of his argument to use the photograph for purposes for which it was not in evidence and to refer to and comment upon this point.

L. E. Walther, Benj. H. Charles, and Wm. E. Baird, for appellants. John P. Leahy and Jos. Wheless, for respondents.

WOODSON, J. (after...