Donoho v. Vulcan Iron Works

• Decision Date: 30 April 1882
• Citation: 75 Mo. 401
• Parties: DONOHO v. THE VULCAN IRON WORKS et al., Appellants.
• Court: Missouri Supreme Court

75 Mo. 401

DONOHO

v.THE VULCAN IRON WORKS et al., Appellants.

Supreme Court of Missouri.

April Term, 1882.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Leverett Bell for the city of St. Louis, appellant.

Plaintiff was not entitled to recover because, at the time he received the injury, he was using the street only as a play ground. Stinson v. Gardiner, 42 Me. 248; Blodgett v Boston, 8 Allen 237; 2 Dillon Munic. Corp., (3 Ed.) § § 1000, 1001, 1002. The obligation esting upon the city is filled if the streets are reasonably safe for travel--not for play or for any other purpose, but solely for travel. Blake v. St. Louis, 40 Mo. 569; Smith v. St. Joseph, 45 Mo. 449; Bowie v. Kansas City, 51 Mo. 454; Barrett v. St. Joseph, 53 Mo. 290; Brown v. Glasgow, 57 Mo. 156; Craig v. Sedalia, 63 Mo. 417.

Cline, Jamison & Day for the Vulcan Iron Works, appellant.

The jury having found the Vulcan Iron Works not guilty of negligence could not do otherwise than find for the city. Charter, art. 16, § 9.

A. R. Taylor for respondent.

The chief vice of the instructions given for the defendant, the Vulcan Iron Works, is, that they ignore entirely the capacity of the plaintiff, a child, and charges him with the same degree of care and prudence as an adult. Kempinger v. R'y Co., 3 Mo. App. 681; Boland v. R. R. Co., 36 Mo. 484; O'Flaherty v. R. R. Co., 45 Mo. 70; Wharton on Negligence, § 310; R. R. Co. v. Gladman, 15 Wall. 401; R. R. Co. v. Stout, 17 Wall. 657. The instruction given at the instance of the city, that if plaintiff was on the street at the time of the injury, for amusement or pastime, that fact bars a recovery, was error. This is New England Town Law, and is statutory and barbarous. Wharton on Negligence, § 991; Blodgett v. Boston, 8 Allen 257; Wharton Neg., § 957; Dillon on Munic. Corp., (2 Ed.) § 785. New England towns have been held to be affected with no common law liability as to their highways. Wharton Neg., 266. A municipal corporation having full power to remove a nuisance and neglecting to do so, is liable for injuries caused thereby. Wharton Neg., § 265; Dillon on Munic. Corp., (2 Ed.) § 798; Cooley on Torts, p. 625; Jones v. New Haven, 34 Conn. 1; Norristown v. Moyer,67 Pa. St. 355. A city by accepting a charter empowering it to keep its streets in repair, is liable to parties injured through its negligence in keeping up repairs. Wharton Neg., § 959.

HOUGH, J.

This is an action for damages for personal injury received by the plaintiff from the falling of a bank of earth upon him in Clay street, in the city of St. Louis. The bank of earth was created by excavation and removal of sand and dirt by the Vulcan Iron Works, during a period of several years, of which the city had notice.

The plaintiff's testimony tended to show that Clay street was one of the principal streets in that quarter of the city in which it was located, that it was used for travel, and was necessary for the convenience of the public; that on the day before the plaintiff was injured, the servants of the Vulcan Iron Works dug into the bank and removed sand and dirt therefrom, and left the bank undermined and in such condition that it was thereby caused to fall; that at the time of the injury the plaintiff, being then eleven years of age, was on an errand for his mother, and stopped to watch some boys who were playing at the bank, and while looking on, but not participating in the play, the bank fell, killing one boy and seriously injuring the plaintiff. The testimony for the defendants tended to show that the bank was caused to fall by the act of the plaintiff and other boys, who were at play, digging into it; that the plaintiff was not at the time using the street for the purpose of travel, but as a play ground and for purposes of amusement; that the street was in its natural condition and had never been graded, improved or repaired, and could not be used for vehicles, and that plaintiff had long lived in the vicinity of the bank, knew its condition and had been in the habit of playing there. There was a verdict and judgment for both defendants.

1. MUNICIPAL CORPORATION: defective streets: infancy.

The court of appeals reversed the judgment of the circuit court, for error committed in giving the following instruction: “If the jury believe from the evidence that plaintiff, Donoho, at the time he received the injuries complained of, was in company with other boys using Clay street for the purpose of playing or amusing themselves thereon and not for the purpose of passing over or traveling on said street, then, notwithstanding he was injured, he cannot recover against the city of St. Louis.” The opinion of the court of appeals is reported in 7 Mo. App. 447, and for the reasons there given we are of opinion that its judgment should be affirmed.

2. INFANCY: contributory negligence.

We are further of opinion that the following instruction, asked by the plaintiff, should have been given: “The court instructs the jury that, in considering the question as to whether or not plaintiff contributed by his own act to cause the injury to himself...