Christman v. Meierhoffer

• Decision Date: 05 February 1906
• Citation: Christman v. Meierhoffer, 92 S.W. 141, 116 Mo. App. 46 (Mo. App. 1906)
• Parties: CHRISTMAN v. MEIERHOFFER.
• Court: Missouri Court of Appeals

92 S.W. 141

116 Mo. App. 46

CHRISTMAN v. MEIERHOFFER.

Kansas City Court of Appeals. Missouri.

February 5, 1906.

1. MUNICIPAL CORPORATIONS — STREETS—USE BY ABUTTING OWNERS.

While a property owner has a right to use the street in front of his premises as a place to temporarily dispose of materials and tools for the construction of improvements upon the premises, this right must be exercised in a reasonable manner with due regard for the safety of travelers, and the obstruction must not be maintained longer than is necessary, nor more of the street used than is absolutely required,

and reasonable diligence must be exercised in providing warning signals during darkness.

2. SAME—DUTY TO PLACE LIGHT ON OBSTRUCTION.

A property owner, piling in the street in front of his property materials for use in constructing a sidewalk, is not relieved of the duty of placing a warning light upon the obstruction by the fact that it was the custom of the city to light the street lights early enough to disclose the presence of the obstruction.

3. SAME—USE OF STREET—OBSTRUCTIONS—INJURIES—CONTRIBUTORY NEGLIGENCE.

A person riding a bicycle along a street which was paved over the entire width, and injured by running into a pile of material intended for use in building a sidewalk, was not guilty of contributory negligence as a matter of law in riding along the side of the roadway instead of in the middle.

4. SAME — INJURY TO CYCLIST — FAILURE TO CARRY LIGHT.

A bicyclist injured by an obstruction in the street was not guilty of contributory negligence as a matter of law, because not carrying a lamp on his wheel.

5. SAME—ACTION FOR INJURIES—EVIDENCE—ORDINANCE.

A city ordinance, providing that any person may use the streets for the piling of building material and tools, provided permission is obtained from the mayor and a light is maintained at night, includes material to be used in the construction of sidewalk, and so is admissible in evidence in an action for injuries resulting from a collision with a pile of sidewalk material not lighted.

6. SAME.

In an action for injuries from a collision of a bicyclist with a pile of building material in a street, in which it was alleged that defendant was negligent in failing to light the pile at night, the admission in evidence of an ordinance permitting any person to use the streets to pile building material, if permission of the mayor is obtained and the pile is lighted at night, was not erroneous on the ground that it permitted the jury to find against defendant on the assumption that he had not procured the permit from the mayor; it being the duty of defendant to request an instruction limiting the effect of the ordinance to the question of lighting, as to which it was admissible.

Appeal from Circuit Court, Cooper County; William H. Martin, Judge.

Action by Henry Christman against Charles Meierhoffer. From a judgment for plaintiff, defendant appeals. Affirmed.

W. M. Williams, for appellant. C. D. Corum, for respondent.

JOHNSON, J.

Action for damages resulting from personal injuries alleged to have been sustained in consequence of the negligence of defendant. Plaintiff recovered judgment in the sum of $500, and defendant appealed.

On the date of injury, April 9, 1904, defendant was the owner of certain residence property in the city of Boonville situated on the south side of High street, one of the public streets in said city, and was having a granitoid sidewalk laid in front of the premises. Materials for use in this construction, such as stone, sand, cinders, etc., were piled in the macadamized roadway; the several piles being four or five feet from the curb line and extending six or seven feet towards the middle of the street. The entire space between the curb lines was paved and in use by the public. Plaintiff, a clerk in a grocery store, was sent by his employer at about 7:30 o'clock in the evening to deliver a package of butter to a customer, and rode a bicycle in performing his errand. His route took him along High street past defendant's property, and on account of darkness he was proceeding slowly, when he ran into a pile of cinders placed in the street by defendant and was overthrown and seriously injured.

The negligence charged in the petition, upon which the cause of action is founded, is "that the defendant negligently failed to maintain at night at said piles of building material, an artificial light, and negligently failed to take any steps, or use any means whatsoever, to give notice to and warn plaintiff and others passing over and along said street of the existence and location of said piles of building material." Among other defenses, defendant in his answer pleaded contributory negligence, and insists that, under the evidence of plaintiff, his negligence should be assumed as a necessary conclusion of law. Defendant further contends that no negligence on the part of defendant appears from the evidence. Both of these issues of law were fairly presented to the trial court under defendant's request for a peremptory instruction, which the learned judge refused, and have been properly preserved for our consideration.

It appears from the evidence introduced by plaintiff that the streets were not lighted at the time. Electricity was used by the city for that purpose, but the company in charge of the public lighting under contract with the city did not turn on the light until about dark, and sometimes even later. On this particular evening, the sky was overclouded, and, as the streets were not illuminated, it was so dark that plaintiff could see only four or five feet ahead of his wheel as he traveled along High street. He was looking ahead for possible danger, but did not know of the obstructions placed in the street by defendant and on account of the blackness of the cinders did not see the pile. Defendant had not placed any lights or other signals to warn the public of the presence of the materail in the street. Plaintiff carried no headlight on his vehicle. The presence of the obstructions in the street, the failure to place signals upon them, the darkness of the night, the absence of public lights, and the condition of the weather are all facts conceded by defendant; but, under the evidence offered by him, it appears that except on rare occasions the streets were lighted before it became quite dark; that defendant was not at the premises that evening and therefore did not know the street was dark; and that plaintiff had actual knowledge of the presence of the obstructions.

It is not denied that a property owner has the right to use the...