Dougherty v. City of St. Louis

• Decision Date: 28 June 1913
• Citation: 158 S.W. 326
• Parties: DOUGHERTY v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

158 S.W. 326

DOUGHERTY v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri, Division No. 1.

June 28, 1913.

1. MUNICIPAL CORPORATIONS (§ 665) — STREETS — TEMPORARY USE BY ABUTTING OWNER.

Though it may be for a short time only, the use of a street is permanent and unlawful (and not within the rule that an abutting owner may make a reasonable temporary use of a street, causing an obstruction), where such owners engaged in using the abutting property as a storage place for old building material, and, because of their storage room being full, use the street as a storage room, proposing to do so till the congested condition of their yard is relieved.

2. MUNICIPAL CORPORATIONS (§ 822) — OBSTRUCTIONS IN STREETS — NOTICE TO CITY — INSTRUCTIONS.

An instruction, open to construction of saying that "about three days" was in law the reasonable notice to which a city was entitled of an obstruction in a street to make it liable for injury therefrom, is objectionable.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by Charles Dougherty, by Richard Dougherty, his next friend, against the City of St. Louis and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded for new trial.

O. F. Karbe and S. C. Rogers, both of St. Louis, and Edwin Rosenthal, of Clayton, for appellant. William E. Baird, Robert Burkham, and Muench, Walther & Muench, all of St. Louis, for respondents.

GRAVES, J.

Charles Dougherty, a boy of 10 years, sues through his next friend, to recover from defendants for personal injuries received by him when a pile of lumber in the street fell upon him. The suit was against the city of St. Louis, the two copartners in the business firm of J. P. Riechers & Son, and the Dimple Realty Company. The latter was dismissed by the trial court upon a demurrer to the testimony, and it is conceded in the briefs here that such ruling was correct. Upon trial a jury returned a verdict for the other defendants, and from that verdict and the judgment entered thereon the plaintiff has appealed.

The negligence charged is thus stated in the petition: "Plaintiff for cause of action states that on the 11th day of February, 1909, St. Louis avenue in said city of St. Louis and the sidewalks pertaining thereto constituted an open public highway of said city; that the premises heretofore mentioned abutted on said public highway, to wit, St. Louis avenue, and was surrounded and inclosed by a board fence; that on the day and date above mentioned, and for several days prior thereto, defendants J. P. Riechers, Charles P. Riechers, and the Dimple Realty Company owned and maintained a pile of heavy lumber on the St. Louis avenue side of said premises, and on the open public highway, said pile of lumber being about 15 feet in length, about 5 feet wide, and about 8 feet high, and extended outwardly from said fence a distance of about 5 feet on the public highway; that it was the duty of said city of St. Louis to keep its sidewalks free from nuisances and dangerous obstructions and in reasonably safe condition to persons lawfully on said street; that the fact of said lumber being on said sidewalk was known to the defendants city of St. Louis and its agents and servants, or could by the exercise of ordinary care have been known to said defendant city of St. Louis; that said lumber was negligently, carelessly, loosely, and improperly piled, in this, to wit, that defendants failed to brace said lumber with properties or crosspieces, placed between the boards constituting said pile of lumber, and that said lumber was not guarded so as to warn persons who might come near or in contact with same of their danger; and that said pile of lumber was dangerous to persons who might come near or in contact therewith." The petition then alleges that plaintiff and other boys were playing in, upon, and around such pile of lumber, when a portion thereof fell upon him and injured him. Damages are asked in the sum of $15,000. The two individual defendants J. P. and C. P. Riechers answer (1) by a general denial, and (2) a plea of contributory negligence. The answer of the city is to like effect. The answer of the realty company need not be considered. Complaint is made of the giving and refusing of instructions, the admission of improper evidence, and the refusing to admit proper evidence. Incident facts will be detailed in the course of the opinion in connection with the points made.

I. Plaintiff asked a general instruction, which the court refused to give, and this is one of the complaints urged here. The instruction as asked reads: "The court instructs the jury that if they believe and find from the evidence that the defendants J. P. Riechers and Charles P. Riechers placed the pile of lumber mentioned in the evidence on the sidewalk on St. Louis avenue, near Leffngwell avenue, prior to the 11th day of February, 1909, or owned same and allowed it to be done, and that they allowed it to remain there for about three days, and that the defendant city of St. Louis knew the same was so placed on said sidewalk, or might by the exercise of reasonable care have known through its officers and agents that same was there, and that the defendants J. P. Riechers and Charles P. Riechers and the city of St. Louis knew or by the exercise of reasonable care could have known, that same was improperly piled and unsafe and dangerous to children lawfully playing on or around same, and that said lumber was carelessly, negligently, loosely, and improperly piled by reason of not being braced with proper ties or crosspieces, placed between the boards constituting said pile of lumber, and that said lumber was unguarded, and that while said lumber was in said condition on said sidewalk, at the place mentioned in the evidence on or about the 11th day of February, 1909, the front tier of said lumber fell and injured Charles Dougherty, plaintiff herein, while he was playing on, near, at, or around same, and that the said plaintiff was at the time he was injured in the exercise of ordinary care, then you will find your verdict in favor of plaintiff." This instruction the court modified and gave. The modified instruction reads: "The court instructs the jury that if they believe and find from the evidence, that said St. Louis avenue was, on the 11th day of February, 1909, an open public highway, that the defendants J. P. Riechers and Charles P. Riechers placed the pile of lumber mentioned in the evidence on the sidewalk on St. Louis avenue, near Leffngwell avenue, prior to the 11th day of February, 1909, or owned same and allowed it to be done, and that they allowed it to remain there for an unreasonable length of time, and that the defendant city of St. Louis knew the same was so placed on said sidewalk, or might, by the exercise of reasonable care have known through its officers and agents that same was there, and that the defendants J. P. Riechers and Charles P. Riechers, and the city of St. Louis knew or by the exercise of reasonable care could have known, the same was improperly piled and unsafe and dangerous to children lawfully playing on or around same, and that said lumber was carelessly, negligently, loosely, and improperly piled by reason of not being braced with proper ties or cross-pieces, placed between the boards constituting said pile of lumber, and that said lumber was unguarded, and that while said lumber was in said condition on said sidewalk, at the place mentioned in the evidence, on or about the 11th day of February, 1909, the front tier of said lumber fell and injured Charles Dougherty, plaintiff herein, while he was playing on, near, at, or around same, and that the said plaintiff was at the time he was injured in the exercise of ordinary care, then you will find your verdict in favor of plaintiff."

Some pertinent facts should be first stated. The individual defendants were the lessees of the vacant adjoining lot, and had it fenced, and for years had used it for the purpose of storing secondhand lumber and other building material. On St. Louis avenue the space between the board fence surrounding their lot and the curb line of the street was something like 20 feet, the outside portion having a sidewalk upon it. The lumber pile was on the inside portion, and not on the sidewalk portion. The evidence sharply conflicts as to whether the lumber was safely or negligently piled up. A jury could well find either way upon this question. Likewise the evidence sharply conflicts as to how long this particular pile of lumber had been in the street at this point. One witness for defendants says: "I have known Riechers for eight years. The lumber had been there five or six days. I took more interest in this particular case because I knew that these boys would get hurt if they would keep on playing around that lumber pile." Other evidence places the time much shorter, but it is sufficient for us to say that there is a conflict in the evidence, with substantial evidence both ways. The theory of the defense is largely founded upon the testimony of Charles P. Riechers. This is short, as condensed in the abstract, and we quote both sides of it, thus:

Direct examination by Mr. Muench:

"My name is Charles Riechers. I am in the general construction business with my father, J. P. Riechers & Son. Have been about 25 years. We are occupying the lot at the corner of Leffngwell and St. Louis avenues...