Dougherty v. City of St. Louis
| Decision Date | 28 June 1913 |
| Parties | CHARLES DOUGHERTY, By Next Friend, RICHARD DOUGHERTY, Appellant, v. CITY OF ST. LOUIS et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. William B. Homer Judge.
Reversed and remanded.
O. F Karbe and S. C. Rogers for appellant.
(1) The court erred in refusing to give instruction numbered one offered by plaintiff, and in changing and modifying same and giving to the jury in its changed and modified form. The court erred in giving instructions numbered five, six, seven, eight, nine, ten and eleven, offered by defendants Riechers. Perrigo v. St. Louis, 185 Mo. 274; Commonwealth v. McNaugher, 131 Pa. St. 55; 15 Am. & Eng. Ency. Law (2 Ed.) 444, 492-3; Coffey v. Carthage, 186 Mo. 573; Kossman v. St. Louis, 153 Mo. 293; Bassett v. St. Joseph, 53 Mo. 290; Brennan v. St. Louis, 92 Mo. 482; Hull v. Kansas City, 54 Mo. 598; Troll v. Cement Co., 160 Mo.App. 507; Nagel v. Railroad, 75 Mo. 653; Burger v. Railroad, 112 Mo. 238; Sydnor v. Arnold, 122 Ky. 557; Barrows on Negligence, p. 18; Heberling v. Warrensburg, 204 Mo. 613; Russell v. Columbia, 74 Mo. 494; Barr v. Kansas City, 105 Mo. 560; Graney v. St. Louis, 141 Mo. 180; Maus v. Springfield, 101 Mo. 613; Chilton v. St. Joseph, 143 Mo. 192; Straub v. St. Louis, 175 Mo. 413; Busse v. Rogers, 64 L.R.A. 183, 120 Wis. 443; King v. Troy, 104 N.Y. 344; Rachmel v. Clark, 205 Pa. St. 314, 62 L.R.A. 959; Buttron v. Bridell, 228 Mo. 622; Fullerton v. Fordyce, 121 Mo. 1; Roberts v. Railroad, 153 Mo.App. 638.
William E. Baird and Robert Burkham for respondent City of St. Louis.
Muench, Walther & Muench for other respondents.
(1) An abutting owner has the right to use a part of the highways for the receiving of freight, or the temporary deposit of articles connected with his business, so long as such temporary use does not unreasonably interfere with travel. Gerdes v. Foundry Co., 124 Mo. 347; Watson v. Railroad, 69 Mo.App. 548; McRee v. Peters, 142 Mo.App. 286; Davis v. Thompson, 134 Mo.App. 13; Dillon on Municipal Corporations (4 Ed.), sec. 730. (2) There is a difference between the paved and unpaved portions of a sidewalk, with respect to the use by the abutting owner and the public, respectively. Bassett v. St. Joseph, 53 Mo. 303; Fritz v. Kansas City, 84 Mo. 632; Craig v. Sedalia, 63 Mo. 417; Brown v. Glasgow, 57 Mo. 156; Kling v. Kansas City, 27 Mo.App. 231. (3) While the occupancy of a sidewalk by an abutting owner must not extend beyond a reasonable space of time, what is a reasonable time is to be determined by the circumstances of each case and is a question of fact for the jury. Hesselbach v. St. Louis, 179 Mo. 523; Loth v. Theater Co., 197 Mo. 328; Gerdes v. Foundry Co., 124 Mo. 355. (4) The pile of lumber in question, placed there by the abutting owners under the circumstances shown in evidence, was not a nuisance "per se." Hesselbach v. St. Louis, 179 Mo. 505; Gerdes v. Foundry Co., 124 Mo. 347; Seibert v. Railroad, 188 Mo. 657; Loth v. Theatre Co., 197 Mo. 328; O'Hara v. Gas Light Co., 244 Mo. 395. (5) The negligence declared upon in plaintiff's petition was the alleged careless manner of piling the lumber and plaintiff could not therefore recover upon any other ground. The case must be disposed of in this court upon the theory upon which it was tried below. Hesselbach v. St. Louis, 179 Mo. 524; O'Hara v. Gas Light Co., 244 Mo. 395. (6) A pile of lumber could not be considered as a dangerous contrivance which is tempting to children, and the "turn-table" cases do not apply. O'Hara v. Gas Light Co., 244 Mo. 395; Kelly v. Benas, 217 Mo. 1; Friedman v. Snare, 71 N.J.L. 605; Powers v. Bridge Co., 89 N.Y.S. 1030; Witte v. Stifel, 126 Mo. 295; Stone v. Railroad, 96 N.Y.S. 810; Kreiner v. Straubmueller, 30 Pa. S.Ct. 609; Railroad v. Cline, 111 Ill.App. 416. And the plaintiff in going upon the lumber was guilty of trespassing. Witte v. Stifel, 126 Mo. 295; Schmidt v. K. C. Dist. Co., 90 Mo. 284; Moran v. Pullman Co., 134 Mo. 641. "The turn-table cases are anomalous, and it is the practice of the courts to carry their doctrine no further than the previous conditions compel." O'Hara v. Gas Light Co., 244 Mo. 407; Witte v. Stifel, 126 Mo. 295; Barney v. Railroad, 126 Mo. 372.
Charles Dougherty, a boy of ten 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 co-partners 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 eleventh 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 were surrounded and enclosed 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 fifteen feet in length, about five feet wide and about eight feet high, and extended outwardly from said fence a distance of about five 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 defendant, 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 proper ties or cross-pieces 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 Leffingwell 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 Leffingwell 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....
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