Carrington v. City of St. Louis

• Decision Date: 07 June 1886
• Citation: Carrington v. City of St. Louis, 89 Mo. 208, 1 S.W. 240 (Mo. 1886)
• Parties: CARRINGTON v. CITY OF ST. LOUIS and others.
• Court: Missouri Supreme Court

1 S.W. 240

89 Mo. 208

CARRINGTON v. CITY OF ST. LOUIS and others.

Supreme Court of Missouri.

June 7, 1886.

1. MUNICIPAL CORPORATIONS — LIABILITY FOR DEFECTIVE WAYS — NOTICE — POLICE OFFICER — REV. ST. Mo. 1879, § 33.

Where a person was injured by falling against trap-doors of a cellar-way in a sidewalk, left open by a police officer, the city was held liable; such officer being, according to Rev. St. Mo. 1879, § 33, an agent of the city, and his knowledge of the condition of the doors being, consequently, notice to the city.

2. WITNESS — COMPETENCY OF PHYSICIANS — REV. ST. MO. 1879, § 4017.

Rev. St. Mo. 1879, § 4017, which says a physician or surgeon shall be incompetent to testify concerning any information which he may have acquired from any patient while attending him in a professional character, does not create an absolute disqualification, and the patient may call the physician as a witness to testify as to information thus acquired.

Appeal from St. Louis court of appeals.

O. G. Hess, for respondent, Rush W. Carrington. L. Bell, for appellants, City of St. Louis and others.

BLACK, J.

The plaintiff, a minor, brought this suit by his next friend to recover damages for injuries sustained by falling against iron trap-doors of a cellar-way, in a sidewalk, in the city of St. Louis. The doors covered a cellar-way opening into a building used and occupied by the police commissioners as a police station. The defendant Balte, who was a member of the police force, opened the doors, painted them, propped them open with a stick, and left them in that position to dry. Plaintiff fell upon them, and received severe injuries.

It is the duty of the city to keep its streets and sidewalks in a reasonably safe condition for persons traveling thereon with ordinary care and caution. This duty, and a consequent liability, extends to those cases where the obstruction or unsafe condition of the street is brought about by persons other than the agents of the city. Bassett v. St. Joseph, 53 Mo. 298; Russell v. Columbia, 74 Mo. 490. But in such cases it devolves upon the plaintiff to show that the city had notice of the defect, or ought to have had knowledge thereof by the use of reasonable care and watchfulness. The court told the jury that Balte was not the agent of the city, and that his negligence was not its negligence, and left it to them to determine "whether the dangerous condition of the sidewalk and cellar-way was known to the city, or, by the use of ordinary care, might have been known to it, in time to have the same safe, and thus prevented the injury." Assuming that the policeman was not the agent of the city, and there is no evidence that any agent knew of the defect. Obviously, then, under the principles of law before stated, and the instruction which is in conformity therewith, the question is, was there evidence entitling the case to go to the jury on the ground that the defendant should have known of the defect? Negligence in not knowing of the dangerous condition of the doors may be shown by circumstances, including the lapse of time during which the defect existed. Besides the undisputed facts before stated, the evidence tends to show that the doors were seen open between 1 and 2 o'clock in the afternoon, and continued propped open until the boy got hurt, about half past 5 o'clock of the same afternoon; that it was dark when he fell upon the doors, though the street lamps at that particular place, and the gas-jets at the station, had not been lighted; and that the sidewalk at this place was much resorted to for travel, — so much so that scarcely 10 seconds of time intervened between the time in which persons would pass and repass, both day and night. The sidewalk was ten feet wide, and the doors extended out from the building, and into the walk, four feet eight inches. This evidence we hold fully justified the court in submitting the question to the jury. Much depends upon the surroundings, in cases of this character; for what might be negligence in not knowing of a dangerous condition of a sidewalk at one locality in the city would be at another. The walk was much used and resorted to, and that called for increased care on the part of the city.

2. But was Balte, the policeman, an agent or officer of the city of St. Louis? If he was not, it is by reason of the various special acts of the general assembly establishing a board of police commissioners within and for the city of St. Louis. Chapter 6, App. 2, Rev. St. 1879. By these acts four of the commissioners are appointed by the governor. The mayor of the city is ex officio a member and president of the...