Carle v. City of Desoto

• Decision Date: 21 May 1900
• Citation: 156 Mo. 443,57 S.W. 113
• Parties: CARLE et ux. v. CITY OF DESOTO et al.
• Court: Missouri Supreme Court

57 S.W. 113

156 Mo. 443

CARLE et ux. v. CITY OF DESOTO et al.

Supreme Court of Missouri, Division No. 2.

May 21, 1900.

MUNICIPAL CORPORATIONS — LIABILITY FOR DEFECT IN STREET — EVIDENCE — REVIEW.

1. Where a motion for a new trial was withdrawn as to one defendant, a writ of error attacking the judgment in his favor will be dismissed.

2. The child of plaintiff was drowned in a hole excavated in a street about 80 feet from the mouth of a sewer. In an action against the city, evidence was offered by plaintiff of council proceedings, contracts, and reports relating to the repair of the sewer. A provision in the original draft of the contract for a catch-basin at the mouth of the sewer was stricken out, but the contractor was entitled to additional compensation for extra work, which, it was contended, would authorize such catch-basin. Held, that it was not error to exclude such evidence, as it did not show any connection of the city with the excavation where the child was drowned, as such hole was not a part of the repairs to the sewer.

3. Where, in an action against a city and members of its council individually, certain evidence was only introduced against the members of the council, and no exception was taken to the ruling of the court so limiting the evidence, such ruling will not be reviewed.

4. A city cannot be held liable for the death of a child drowned in an excavation on a street, as being a tort feasor with one who made the excavation without authority, where such was not the theory of the complaint, and where the evidence does not show that the street was ever opened by the city, or that the city had actual or implied knowledge of such excavation.

Error to St. Louis circuit court.

Action by N. H. Carle and wife against the city of Desoto and another for the death of a child. From a judgment in favor of defendants, and an action denying a motion for a new trial, plaintiffs bring error. Affirmed.

John L. Thomas, for plaintiffs in error. Sam Byrns and Louis F. Dinning, for defendants in error.

GANTT, P. J.

This is an action by plaintiffs in error against the city of Desoto and Otto Herman for damages in the sum of $5,000, growing out of the death of plaintiffs' minor child, caused by falling into a hole dug into a platted street in said city, known as "Allen Place." The cause was commenced in Jefferson county, but by change of venue was sent to the city of St. Louis, and was tried in division No. 3 of the circuit court of said city. A verdict was rendered in behalf of the city of Desoto and Herman. A motion for new trial was filed as to them, but on the 29th day of March, 1895, the plaintiffs voluntarily withdrew said motion as to defendant Herman, and the judgment in his favor stands unappealed from, and, by consent, remains in full force and effect. Under this state of facts, the writ of error as to said defendant was improvidently sued out, and is therefore dismissed. The errors assigned as to the defendant city, only, remain for disposition.

The city of Desoto is a city of the third class, and has been such since February 10, 1883. Omitting the caption and formal averments of the incorporation of defendant city, the petition is as follows: "That during said year the defendant city of Desoto owned a street within its corporate limits, known as `Allen Place,' which was then and is now open for public use and travel; that a short time prior to the 27th day of November, 1892, the defendants caused to be dug in said street an excavation about eight feet deep and eight feet in diameter, which immediately filled with water; that defendants willfully, wantonly, negligently, and carelessly left said excavation in said street uncovered and unguarded, and plaintiffs' minor son, Frederick J. Carle, then nearly six years old, while in said street on said day fell into the water in said excavation and was drowned, by reason of which they have been deprived of the services and earnings of their said son during his minority, and of his companionship and society during their joint lives. Plaintiffs therefore state that the death of their said son, and the consequent loss to them, as above, was the direct result of the willful, wanton, negligent, and careless act of the defendants in leaving said excavation uncovered, unprotected, and unguarded, by which they have been damaged in the sum of five thousand dollars, for which they ask judgment." The answer of the city is as follows: "Now comes the city of Desoto, and, by leave of court first obtained, files this, its answer to the amended petition of plaintiffs filed herein. And for such answer this defendant admits that it is a municipal corporation — a city of the third class — duly incorporated and existing under and by virtue of the laws of the state of Missouri. This defendant admits that plaintiffs are husband and wife, and that they are the parents of Frederick J. Carle, deceased. This defendant, further answering, denies each and every allegation in plaintiffs' said amended petition contained. This defendant, for further answer, avers that the death of the said Frederick J. Carle was brought about by the carelessness and negligence of the plaintiffs directly contributing thereto. This defendant, having fully answered the said amended petition of plaintiffs, prays to be discharged thereof, and for judgment against the plaintiffs for its cost in this behalf expended." Reply was filed, denying new matter.

The evidence disclosed that plaintiffs lived on the corner of Fourth street and Allen place. Allen place is a street 40 feet wide, running east and west from Fourth street and Sixth street, only. Plaintiffs' house fronts on Fourth street. Allen place was and is a street on paper. No ordinance of the city has ever required it to be graded or improved. No public money has ever been expended on its improvement. The great weight of the testimony justifies us in saying that Allen place was only a street by virtue of a dedication by the plat of Rathbun & Donaldson's addition to the city, designating it as a street. The only official recognition claimed by plaintiffs that was ever given this place as a street was a general ordinance, passed years ago, which, after naming certain streets, concluded with these words: "All the streets not mentioned in this article shall remain as shown by the original plat on file in the office of the recorder of Jefferson county, Mo." As this was a part of a subsequent addition it can hardly be said to have any reference to Allen place. Indeed, we conclude this so-called place was an untraveled ravine. No buggy or wagon was ever known to traverse it, and only an adventurous horseman ever tried it horseback. An irregular footpath ran through it. This ravine is dry, except in rainy weather, when considerable water gathers in it, and empties into the Boyd street sewer, about 80 feet from the north side of said Allen place. In November, 1892, a hole was dug in the north part of Allen place, about four feet deep. This hole was filled with water from a rain that fell on Friday night and Saturday. On Sunday afternoon plaintiffs' child, nearly 6 years old, was found drowned in this hole. About an hour before he was found, his mother saw him on Fifth street, and called him, and he answered that he would come. This hole could not be seen from plaintiffs' residence, and they did not know of its existence till the child was drowned. To show that the said hole was dug by and under the authority of the city, the plaintiffs offered the following proceedings of the city council, under dates of June 6, August 1, August 21, and September 6 and 12, 1892, which said entries are as follows: Record, June 6th: "City Councilman Becker reported that Boyd street sewer had caved in at one place, and that it was undermined at several places; also, that the bottom was washed out. Moved and seconded that the street committee, with the street commissioner, make an estimate of what it will cost to repair the Boyd street sewer in proper shape. Carried." Record, August 1st: "Moved and seconded that L. D. McGlashion be employed by the council to examine the Boyd street sewer, as to its condition, etc., and report at next meeting, if possible. Carried." Record, August 21st: "McGlashion handed in a report of the estimate of the cost of repairing the Boyd street sewer, as requested by the council, which was read, and is as follows: `Estimate, using brick: Excavation of gravel now deposited in sewer by rainfall and for invert arch, 400 cubic yards, at 50c., $200; repair of walls and rock excavations in sewer, $100; 62 M. hard brick, laid in cement, at $19, $1,178; one catch-basin at each cross street, 3 in all, $20 each, $60; excavation for sump at entrance to sewer, $50; total cost, using brick, $1,588. Estimate, using granitoid: 770 square feet granitoid, at 15c., $1,155; all other expenses being the same as if brick were used, $410; total, $1,565.' ...