Eubank v. City of Edina

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBLACK
PartiesEUBANK v. THE CITY OF EDINA, Appellant.
Decision Date30 April 1886

88 Mo. 650

EUBANK
v.
THE CITY OF EDINA, Appellant.

Supreme Court of Missouri.

April Term, 1886.


[88 Mo. 651]

Appeal from Knox Circuit Court.--HON. BEN. E. TURNER, Judge.

AFFIRMED.

S. B. Davis and O. D. Jones for appellant.

(1) The petition does not state facts sufficient to constitute a cause of action. No facts were proved to show that defendant was a city. Robinson v. Jones, 71 Mo. 582. (2) There was no evidence that the sidewalk was built by the city or received by it or that the city was under any legal obligation to keep it in repair. Craig v. Sedalia, 63 Mo. 417; City, etc., v. Miller, 66 Mo. 467. (3) Public streets of a city can only be located, laid out and named by ordinance and plat. Carrol v. St. Louis, 4 Mo. App. 191; Parkinson v. St. Louis, 4 Mo. App. 322. (4) It was proper to inquire of witnesses who had knowledge of the condition of the walk at the point of the injury whether one by ordinary care could pass the place without accident. Craig v. Sedalia, 63 Mo. 417. (5) The gist of the action was the negligence of the city and it must appear that the officers knew of the defect. Schweickhardt v. St. Louis, 2 Mo. App. 571.

L. F. Cottey for respondent.

(1) The city of Edina is bound to keep its streets, sidewalks, and public ways, in a proper state of repair, free from obstructions, so that they will be reasonably safe for travel in the usual modes by night as well as by day, and will be held liable for all injuries happening by reason of its negligence in this respect. Blake v. St.

[88 Mo. 652]

Louis, 40 Mo. 569; Smith v. St. Joseph, 45 Mo. 449; Bowie v. Kansas City, 51 Mo. 454; Bassett v. St. Joseph, 53 Mo. 290; Hull v. Kansas City, 54 Mo. 598; Oliver v. Kansas City, 69 Mo. 79; Kiley v. Kansas City, 69 Mo. 102; Staples v. Canton, 69 Mo. 592; Beaudeau v. Cape Girardeau, 71 Mo. 392; Welsh v. St. Louis, 73 Mo. 71; Russell v. Columbia, 74 Mo. 480; Bonine v. Richmond, 75 Mo. 437; Loewer v. Sedalia, 77 Mo. 431; Schweickhardt v. St. Louis, 2 Mo. App. 571; Dillon on Mun. Corp., secs. 789, 790 and 791, and case cited. (2) The petition states a good cause of action, clearly and fully set forth. The negligence of th corporation in regard to its duty, and ordinary care and prudence on the part of the individual, form the necessary elements of what it takes to constitute a cause of action. If the facts requisite to constitute a cause of action are necessarily inferable from the petition, it will be held good after verdict. Omission to state a material fact will be obviated if the pleading of the opposite party puts the matter in issue. Smith v. St. Joseph, 45 Mo. 449; Bowie v. Kansas City, 51 Mo. 454; Bassett v. St. Joseph, 53 Mo. 290; Kiley v. Kansas City, 69 Mo. 102; Garth v. Caldwell, 72 Mo. 622; Edmonson v. Phillips, 73 Mo. 57; Alexander v. Campbell, 74 Mo. 142; Chouteau v. Gibson, 76 Mo. 49; McKonn v. Williams, 77 Mo. 467; Worth v. Springfield, 78 Mo. 107; Stewart v. Clinton, 79 Mo. 603; Slack v. Lyon, 9 Pick. 62; Bliss on Code Plead. secs. 175 and 437, and cases cited; R. S., secs. 3546 and 3775. (3) All formal defects are waived when defendant fails to demur and answers over. Sappington v. Ry. Co., 14 Mo. App. 86; Hall v. Johnson, 57 Mo. 521. (4) When a corporation is sued and appears to said suit, files an answer and defends, such appearance is conclusive evidence of its legal existence for the purposes of the pending suit, and no proof of that fact will be required. In this case the defendant having

[88 Mo. 653]

appeared and answered is estopped to deny its own existence. Hudson v. Railroad, 53 Mo. 525; Seaton v. Railroad, 55 Mo. 416; Whitehouse v. Railroad, 64 Mo. 523; Smith v. Railroad, 55 Mo. 526; Sappington v. Railroad, 14 Mo. App. 86; Dillon on Mun. Corp. [2 Ed.] secs. 50 and 51; Singer v. Railroad, 6 Mo. App. 427; Union Depot Co. v. St. Louis, 8 Mo. App. 412; Bigelow on Estoppel [3 Ed.] 461 et seq., and cases cited; Ins. Co. v. Salt Co., 31 Mich. 346. (5) And in regard to corporations there is no distinction between municipal and private bodies. Society for Savings v. New London, 29 Conn. 192; Railroad v. People, 91 Ill. 251; Martel v. East St. Louis, 94 Ill. 67; Roby v. Chicago, 64 Ill. 447; Railroad v. Joliet, 79 Ill. 39; Logan Co. v. Lincoln, 81 Ill. 156; Curnen v. New York, 79 N. Y. 511; Calhoun v. Emigrant Co., 93 U. S. 124, 130; Bigelow on Estoppel, 462. (6) The city of Edina, by appearing and answering in its corporate...

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7 practice notes
  • Sullivan v. Union Electric Light & Power Co., No. 30356.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1932
    ...Mo. 226; Nash v. Dowling, 93 Mo. App. 156; Masterson v. St. L. Transit, 204 Mo. 504; Madden v. Mo. Pac., 50 Mo. App. 666; Dubank v. City 88 Mo. 650. Igoe, Carroll, Higgs & Keefe for (1) Under the often repeated rule, their claim that the "weight of the evidence" favors them is......
  • Wood v. Metropolitan St. Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • March 23, 1904
    ...147 Mo. 465, 48 S. W. 835, in which it was proposed to ask the opinion of a witness as to the competency of a servant; or Eubank v. Edina, 88 Mo. 650 — whether a sidewalk was in a reasonably safe condition. An examination of the whole list will disclose that they differ wholly from a case l......
  • Higgins v. Terminal R. R. Ass'n of St. Louis, No. 42180
    • United States
    • United States State Supreme Court of Missouri
    • July 9, 1951
    ...was for the jury, not the witnesses, to determine from all of the evidence whether the floor was reasonably safe. Eubank v. City of Edina, 88 Mo. 650. (2) In interrogating a witness, Hardaway, a representative of defendant's claim department, defendant's counsel was using a former statement......
  • Disbrow v. People's Ice, Storage & Fuel Co.
    • United States
    • Court of Appeal of Missouri (US)
    • May 19, 1913
    ...left for the jury to determine from facts stated by witnesses. King v. Mo. Pac. Ry. Co., 98 Mo. 235, 11 S. W. 563; Eubank v. City of Edina, 88 Mo. 650; Hamilton v. Rich Hill Coal Min. 157 S.W. 118 Co., 108 Mo. 364, 18 S. W. 977. "Whatever liberality may be allowed in calling for the op......
  • Request a trial to view additional results
12 cases
  • Sullivan v. Union Electric Light & Power Co., No. 30356.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1932
    ...Mo. 226; Nash v. Dowling, 93 Mo. App. 156; Masterson v. St. L. Transit, 204 Mo. 504; Madden v. Mo. Pac., 50 Mo. App. 666; Dubank v. City 88 Mo. 650. Igoe, Carroll, Higgs & Keefe for (1) Under the often repeated rule, their claim that the "weight of the evidence" favors them is foreclosed by......
  • O'Leary v. Scullin Steel Co., No. 23504.
    • United States
    • United States State Supreme Court of Missouri
    • February 11, 1924
    ...v. Railroad, 147 Mo. 465, in which it was proposed to ask the opinion of a witness as to the competency of a servant; or Eubank v. Edina, 88 Mo. 650, in which the inquiry was whether a sidewalk was in a reasonably safe "An examination of the whole list will disclose that they differ wholly ......
  • Wood v. Metropolitan St. Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • March 23, 1904
    ...147 Mo. 465, 48 S. W. 835, in which it was proposed to ask the opinion of a witness as to the competency of a servant; or Eubank v. Edina, 88 Mo. 650 — whether a sidewalk was in a reasonably safe condition. An examination of the whole list will disclose that they differ wholly from a case l......
  • Higgins v. Terminal R. R. Ass'n of St. Louis, No. 42180
    • United States
    • United States State Supreme Court of Missouri
    • July 9, 1951
    ...was for the jury, not the witnesses, to determine from all of the evidence whether the floor was reasonably safe. Eubank v. City of Edina, 88 Mo. 650. (2) In interrogating a witness, Hardaway, a representative of defendant's claim department, defendant's counsel was using a former statement......
  • Request a trial to view additional results

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