City of St. Joseph v. Union Ry. Co.

• Decision Date: 05 June 1893
• Citation: 116 Mo. 636,22 S.W. 794
• Parties: CITY OF ST. JOSEPH v. UNION RY. CO.
• Court: Missouri Supreme Court

22 S.W. 794

116 Mo. 636

CITY OF ST. JOSEPH v. UNION RY. CO.

Supreme Court of Missouri, Division No. 1.

June 5, 1893.

DEFECTIVE STREETS — JUDGMENT AGAINST CITY — CONCLUSIVENESS — RIGHTS OF CITY AGAINST STREET-RAILWAY COMPANY — RAILS ABOVE SURFACE OF STREET — EVIDENCE — BURDEN OF PROOF.

1. A city ordinance permitting a street-car company to lay its tracks in a certain street required that the same be on a level with the street, and that the space between the track be kept in good repair. An action was brought against the city for personal injuries resulting from defects in such street. The complaint alleged that the street was full of holes, and that the rails of the street-car track were some four inches above the level of the street; that by reason thereof plaintiff was thrown from his wagon and injured. The street-car company was notified of the action, and rendered some assistance in the defense. The jury were instructed that the city was liable, and judgment was rendered for plaintiff. Held, in an action by the city against the street-car company for the amount of such judgment, that the judgment was conclusive only of the facts that the street was defective, as alleged, that by reason of such defects plaintiff was injured, and the amount recovered.

2. In the latter action the pleadings, verdict, and judgment of the former action were properly admitted.

3. It was error to reject evidence by defendant that its tracks were laid, kept, and maintained in compliance with the ordinance.

4. It was error to allow plaintiff to read from the bill of exceptions the evidence given on the former trial.

5. The burden of proof was on the city to show that it was the fault of the street-car company that the rails were above the level of the street.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by the city of St. Joseph against the Union Railway Company to recover the amount of a judgment rendered against plaintiff in an action for personal injuries resulting from a defective street. Judgment for plaintiff. Defendant appeals. Reversed.

Kelley & Kelley and Thos. F. Ryan, for appellant. Huston & Parrish, for respondent.

BLACK, C. J.

William Tippin recovered a judgment against the city of St. Joseph for $6,000, compensation for personal injuries which he sustained by reason of a defective street. The judgment was affirmed on appeal to this court,¹ and thereafter the city paid the judgment, and then brought this suit against the defendant, a street-car company, to recover the amount so paid to Tippin, and the costs and expenses of that suit. Tippin alleged in his petition that Sixth street, at a designated place, was unsafe and dangerous in this, to wit: "The same was rough and uneven, and there existed in the same excavations, gullies, and holes; and in and along said street, and near the center of the traveled portion of said street, there was at said time a horse-railroad track, the top of the rails of which were more than four inches above the surface of the street, all of which rendered said street defective, unsafe, and dangerous; * * * that while plaintiff (Tippin) was driving along said Sixth street in a two-horse wagon, his team became frightened, and ran away, and up and along said street, and ran into and against and upon said holes, excavations, and gullies and uneven places in said street, and on and against said railroad track, and was then and there and on account thereof thrown out of said wagon," and injured, etc. The instructions given in that case made the city liable if there were holes and gullies in the street, and the rails of the street-car track were several inches above the surface of the street, rendering it unsafe for travel. The jury were also told that, although the city did not place the street-car rails on the street, still if they were there, and were higher than the rest of the street, so as to make the street unsafe and unfit for use, the city was liable for injuries resulting from such defects. On the trial of this case, the city introduced evidence tending to show notice to the defendant of the institution of the former suit, and that defendant took part in the trial of that case. The city put in evidence the pleadings, verdict, judgment, and bill of exceptions in the former suit; also the following ordinance: "The said company shall construct its track of flat, iron rail from their present terminus on Market square to the southern limits of the city, as near as may be to the center and even with the grade of the street on which it may be laid, so that the flow of water in lateral and cross gutters is not obstructed thereby; and the space between the rails shall be kept in good repair by said company, so as not to obstruct passing and crossing or traveling on said streets by other vehicles." The city rested its case on the foregoing evidence, and the defendant moved for a nonsuit, which motion was overruled. The defendant then offered to prove that its tracks were laid, kept, and maintained in compliance with the ordinance, but the...