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

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBlack
Citation116 Mo. 636,22 S.W. 794
Decision Date05 June 1893
PartiesCITY OF ST. JOSEPH v. UNION RY. CO.
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

[22 S.W. 795]

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...

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23 practice notes
  • Rosenzweig v. Ferguson, No. 36650.
    • United States
    • United States State Supreme Court of Missouri
    • October 25, 1941
    ...192 Mo. App. 106; Ridgely v. Stillwell, 27 Mo. 128; Nevins v. Coleman, 200 S.W. 445; Garland v. Smith, 164 Mo. 1; St. Joseph v. Union, 116 Mo. 636; Bray v. Land, 221 S.W. 818. (9) This execution was issued May 7, returnable to the following term, beginning May 9 and running to September 19 ......
  • Mo. Dist. Telegraph Co. v. S.W. Bell Tel. Co., No. 34562.
    • United States
    • United States State Supreme Court of Missouri
    • March 18, 1936
    ...Mo. 51; Freeman on Judgments (5 Ed.), sec. 763; Case v. Sipes, 280 Mo. 120; Baumhoff v. Railroad Co., 205 Mo. 254; City v. Union Ry. Co., 116 Mo. 636. (b) The judgment of the Supreme Court is fully as conclusive as the judgment of any other court. Freeman on Judgments (5 Ed.), sec. 639; 34 ......
  • Aetna Life Ins. Co. of Hartford, Conn. v. Maxwell, No. 4133.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • April 17, 1937
    ...T. & S. D. Co. (C.C.A.) 142 F. 41; Burley v. Compagnie De Navigation Francaise (C.C.A.) 194 F. 335; City of St. Joseph v. Union Ry. Co., 116 Mo. 636, 22 S.W. 794, 38 Am.St.Rep. 626; Littleton v. Richardson, 34 N.H. 179, 66 Am.Dec. 759; City of Lincoln v. First Natl. Bank, 67 Neb. 401, 93 N.......
  • Listerman v. Day & Night Plumbing & Heating Service, Inc., No. 8314
    • United States
    • Missouri Court of Appeals
    • November 13, 1964
    ...190 Mo.App. 490, 516, 176 S.W. 399, 406; Whitaker v. McCormick, 6 Mo.App. 114, 116-117(2). See also City of St. Joseph v. Union Ry. Co., 116 Mo. 636, 643, 22 S.W. 794, 795; Brinkman v. Western Automobile Indemnity Ass'n., 205 Mo.App. 71, 78, 218 S.W. 944, 945; City of Columbia v. Malo, Mo.A......
  • Request a trial to view additional results
23 cases
  • Rosenzweig v. Ferguson, No. 36650.
    • United States
    • United States State Supreme Court of Missouri
    • October 25, 1941
    ...192 Mo. App. 106; Ridgely v. Stillwell, 27 Mo. 128; Nevins v. Coleman, 200 S.W. 445; Garland v. Smith, 164 Mo. 1; St. Joseph v. Union, 116 Mo. 636; Bray v. Land, 221 S.W. 818. (9) This execution was issued May 7, returnable to the following term, beginning May 9 and running to September 19 ......
  • Mo. Dist. Telegraph Co. v. S.W. Bell Tel. Co., No. 34562.
    • United States
    • United States State Supreme Court of Missouri
    • March 18, 1936
    ...Mo. 51; Freeman on Judgments (5 Ed.), sec. 763; Case v. Sipes, 280 Mo. 120; Baumhoff v. Railroad Co., 205 Mo. 254; City v. Union Ry. Co., 116 Mo. 636. (b) The judgment of the Supreme Court is fully as conclusive as the judgment of any other court. Freeman on Judgments (5 Ed.), sec. 639; 34 ......
  • Aetna Life Ins. Co. of Hartford, Conn. v. Maxwell, No. 4133.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • April 17, 1937
    ...T. & S. D. Co. (C.C.A.) 142 F. 41; Burley v. Compagnie De Navigation Francaise (C.C.A.) 194 F. 335; City of St. Joseph v. Union Ry. Co., 116 Mo. 636, 22 S.W. 794, 38 Am.St.Rep. 626; Littleton v. Richardson, 34 N.H. 179, 66 Am.Dec. 759; City of Lincoln v. First Natl. Bank, 67 Neb. 401, 93 N.......
  • Listerman v. Day & Night Plumbing & Heating Service, Inc., No. 8314
    • United States
    • Missouri Court of Appeals
    • November 13, 1964
    ...190 Mo.App. 490, 516, 176 S.W. 399, 406; Whitaker v. McCormick, 6 Mo.App. 114, 116-117(2). See also City of St. Joseph v. Union Ry. Co., 116 Mo. 636, 643, 22 S.W. 794, 795; Brinkman v. Western Automobile Indemnity Ass'n., 205 Mo.App. 71, 78, 218 S.W. 944, 945; City of Columbia v. Malo, Mo.A......
  • Request a trial to view additional results

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