Crocker v. Schureman

• Decision Date: 17 June 1879
• Citation: 7 Mo.App. 358
• Parties: JOHN H. CROCKER, Respondent, v. HENRY SCHUREMAN ET AL., Appellants.
• Court: Missouri Court of Appeals

7 Mo.App. 358

JOHN H. CROCKER, Respondent,

v.HENRY SCHUREMAN ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jun. 17, 1879.

1. In an action for damages caused by a fall upon ice, which, owing to the neglect of the defendants, street-sprinklers, to keep their water-attachments in repair, had formed upon the crossing, it is competent to introduce, for the purpose of showing the defendants' duty, an ordinance requiring them, under penalty, to repair their attachments.

2. Evidence of a custom among street-sprinklers not to visit their water-attachments after the close of the sprinkling season is not admissible.

APPEAL from St. Louis Circuit Court.

Affirmed.

SENECA N. TAYLOR, for appellants: It was an error to permit sect. 2 of chap. 24 of the Revised Ordinances to be read in evidence.-- Henry v. Sprague, 11 R. I. 456; Kirby v. Boyton, 14 Gray, 249. Evidence of the custom of street-sprinklers not to visit their stop-boxes and standpipes after the sprinkling season had closed was improperly excluded.-- Walsh v. Transfer Co., 52 Mo. 438; 2 Greenl. on Ev., sects. 248-252.

PATTISON & DOOLEY, for respondent: The ordinance was admissible as evidence.-- Jetter v. Railroad Co., 2 Keyes, 154; City of Providence v. Clapp, 17 How. 161; Chicago v. Robbins, 2 Black, 418.

LEVERETT BELL, for the City of St. Louis, cited: Schweickhardt v. St. Louis, 2 Mo. App. 581.

HAYDEN, J., delivered the opinion of the court.

The plaintiff sued the present appellants, and also the City of St. Louis, to recover damages for an injury resulting from his falling upon the ice which had formed near a crossing on the street in that city. This ice, it was alleged, was produced by the freezing of water which, through the carelessness of the appellants, who, as street-sprinklers, used a waterspout in the neighborhood, had been allowed to escape and remain upon the crossing until it froze and became dangerous. It was charged that the city, as well as the appellants, for a long time permitted the ice to remain in this condition. The evidence tended to show that in the evening of December 2, 1876, the plaintiff, while crossing, slipped and fell upon this ice, thus fracturing the knee-pan. The appellants owned the stand-pipe and stop-box, which they used during the season of sprinkling the streets. The season ceased some time in November, and there was testimony of the appellants tending to show that early in November, 1876, the water was shut off at this stop-box, while the plaintiff's testimony tended to show that the water had been escaping at that point from about the 12th of November until the date of the accident. The appellants paid a license to the city for the use of the water, and a city ordinance was put in evidence to the effect that any person holding such license should make their own attachments for filling their watercarts, and keep their attachments in repair, under penalty of forfeiture of the license. The jury found for the plaintiff as against the appellants, but found for the City of St. Louis.

It is objected that the ordinance of the city should not have been read, and that such ordinance could not give a right of action for neglect of duty not existing by law. But the court below gave no instruction to the effect that a breach of the ordinance was a ground of recovery, and that part of the ordinance which was read provides merely that a failure in compliance shall cause a forfeiture of the license. The part introduced was competent, as against the appellants, to show...