Fehlhauer v. City of St. Louis

• Decision Date: 23 December 1903
• Citation: 77 S.W. 843,178 Mo. 635
• Parties: FEHLHAUER, Appellant, v. CITY OF ST. LOUIS et al
• Court: Missouri Supreme Court

77 S.W. 843

178 Mo. 635

FEHLHAUER, Appellant, v. CITY OF ST. LOUIS et al

Supreme Court of Missouri, First Division

December 23, 1903

Appeal from St. Louis County Circuit Court. -- Hon. Jno. W. Booth Judge.

Affirmed.

L Frank Ottofy for appellant.

(1) The maintenance of the cellar door, under the facts, was a nuisance, and defendants Schrick, Wallhausers and Graul are therefore, either as owners, lessees or bondsmen, liable for damages resulting from its use. Tate v. Railroad, 64 Mo. 155; Keitel v. Railroad, 28 Mo.App. 665; Mancuso v. Kansas City, 74 Mo.App. 143; City of Memphis v. Miller, 78 Mo.App. 72; Wood on Nuisances, sec. 269; Dillon on Municipal Corp. (4 Ed.), sec. 1032. (2) Where an individual has habitually used an unguarded cellar door in the sidewalk, the city must respond in damages for injuries resulting to a traveler thereon irrespective of the length of time the door may have been open and unguarded at the time of the accident. Frank v. City, 110 Mo. 522; Lichtenberger v. Town of Meriden, 100 Iowa 221; Smith v. Leavenworth, 15 Kan. 81; Chapman v. Mayor and Council of City of Macon, 55 Ga. 566; City of Augusta v. Hafers, 59 Ga. 151, 61 Ga. 48; Whitty v. Oshkosh (Wis.), 81 N.W. 992; City of Chicago v. Babcock, 143 Ill. 362. (3) The defendant, R. Thomas Nester, is clearly responsible because he was in possession of the premises and the injury was caused by his wrongful act. Instructions 2 and 3 given for said defendant constitute error. Beck v. Brewing Co., 167 Mo. 199. (4) The successor in office of the judge who presided at the trial can not pass upon the motion for new trial, which alleges as one of the grounds that the verdict is against the weight of the evidence. He has no jurisdiction to review the alleged errors of his predecessor. The special judge has no jurisdiction except to pass upon and sign a bill of exceptions. State ex rel. v. Walls, 113 Mo. 47; Mill Co. v. Sugg, 142 Mo. 368.

Chas. W. Bates and Wm. F. Woerner for respondent city of St. Louis.

(1) Cellar doors, coal holes and the like in sidewalks, are not unlawful structures. If the city is liable for injury caused by such structures, the question is one of negligence. Carvin v. St. Louis, 151 Mo. 334; Benjamin v. Railroad, 133 Mo. 283; Buckley v. Kansas City, 156 Mo. 16; Gordon v. Peltzer, 56 Mo.App. 599; Kirkpatrick v. Geo. Knapp & Co., 28 Mo.App. 427; Mancuso v. Kansas City, 79 Mo.App. 142; Jegglin v. Roeder, 79 Mo.App. 428; Assn. v. Cohn (Ill.), 7 Munc. Cor. Cas. 808; Ibid, 61 N.E. 439; Rushton v. City of Allegheny (Penn.), 3 Munc. Cor. Cas. 29; City of Lincoln v. Pirner (Neb.), 3 Munc. Cor. Cas. 233. (2) The city is not an insurer of the safety of travelers on its streets or sidewalks, and although a sidewalk is in an unsafe condition, and although a traveler thereon without fault on his part is injured by reason of such unsafe condition, still the city is not liable unless it be further shown that the city had actual notice of such unsafe condition, or that such condition had existed for such length of time prior to the accident and was of such a character that by the exercise of ordinary care the city could have discovered such condition within time to have remedied the same. Buckley v. Kansas City, 156 Mo. 25; Carvin v. St. Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 317. (3) Knowledge of the city that the cellar opening was used is not notice of unlawful or negligent use thereof. Parmenter v. City of Marvin (Iowa), 85 N.W. 90. (4) The judge who succeeded the judge who presided at the trial of the case had the power to pass upon the motion for new trial on the merits. R. S. 1899, sec. 731; State ex rel. v. Perkins, 139 Mo. 117; Glaves v. Wood, 78 Mo.App. 353; Richardson v. Assn., 156 Mo. 412. A mere casual reading of State ex rel. v. Walls, 113 Mo. 42, shows it to be in entire harmony with the later cases above cited.

Kehr & Tittmann for respondent Schrick.

(1) The abutting owner has the right to construct and maintain a cellar-opening in the sidewalk and he incurs no liability by placing and maintaining it there, provided the sidewalk is left and kept in reasonably safe condition for public travel. 2 Dillon's Mun. Corp. (4 Ed.), sec. 656 B; Gordon v. Peltzer, 56 Mo.App. 599; Jegglin v. Roeder, 79 Mo.App. 434; Carvin v. St. Louis, 151 Mo. 348; Benjamin v. Railroad, 133 Mo. 283. (2) The exercise of a lawful right or authority can not afford a basis for an action. "That can not be a nuisance so as to give a common law right of action which the law authorizes." Paine v. Railroad, 112 Mo. 17. Hence, the rule which holds the owner as well as the tenants or occupants liable for the consequences of a nuisance, does not apply to this case. (3) The action is one purely for negligence in allowing the door of a cellar, which the owner had the undoubted right to place in the sidewalk, to remain open and unguarded. For such negligence, if any there be, the occupant at the time of the injury is alone liable. The defendant Schrick had transferred his interest and gone out of possession of the property, six months prior to the accident. He, therefore, had no control of the property and was in nowise responsible for its condition at the time of the accident.

W. B. & Ford W. Thompson for respondents Nester and Graul.

(1) The defendants, John D. Graul and John Nester, owed no duty or obligation to the plaintiff, or to the public, and were in no manner connected with the possession of said premises; they were mere sureties of the lessee, and the obligation thus resting upon them imposed upon them simply an obligation to Schrick, the lessor, who was the original lessee of the premises from the owner. (2) The question of negligence on behalf of those in possession of the premises was a question of fact. The question of whether or not the cellar doors were open, so as to constitute a nuisance, was a question of fact which was submitted to the jury upon proper instructions; and the finding of the jury on this question of fact is conclusive against the plaintiff, and this court will not consider a question which has been submitted and determined by the jury on contradictory evidence. (3) The evidence clearly showed that the cellar doors were closed and fastened when plaintiff passed over them, running after the the child; and, according to one of her statements, only a moment or two elapsed before she again passed over them, when they were open. There was no evidence that the persons who opened them were in the employ of defendant R. Thomas Nester. Jim and Frenchy Lew were mere beer-canners and had no license or authority from defendant Nester to open the doors, and if they opened the doors during the few seconds that elapsed while plaintiff ran over the door and returned, they were trespassers for whom defendants were not responsible. Wolf v. Kilpatrick, 22 Gen. L. J. 516; Benjamin v. Railroad, 50 Mo.App. 602; Waldhier v. Railroad, 71 Mo. 514; Clark v. Famous Shoe Clothing Co., 16 Mo.App. 463; Kilpatrick v. Knapp & Co., 28 Mo.App. 427. Defendant Nester was not chargeable with any notice of any negligence or nuisance, because the time was too short. Smith v. St. Joseph, 42 Mo.App. 392; Lampert v. Gas Company, 14 Mo.App. 376; Harrison v. Collins, 86 Pa. St. 153; Klapp v. Milwaukee, 53 Wis. 196; White v. Gloverville, 12 Hun 302; Sheel v. Appleton, 49 Wis. 125; Blakley v. Fry, 18 Hun 157; Miller v. Newburg, 32 Hun 24; Sikes v. Manchester, 59 Iowa 26.

BRACE P. J. Marshall, J., not sitting.

OPINION

BRACE, P. J.

This is an action for damages for personal injuries. The petition upon which the case was tried is as follows:

"Plaintiff for her third amended petition states that at the times hereinafter stated the defendants Helena Wallhauser and Henry W. Wallhauser were the owners of certain premises fronting on south Second street in the city of St. Louis, Missouri, being the northwest corner of south Second and Valentine streets and known as number 425 South Second street; that defendant Andrew W. Schrick was their lessee and tenant, and that he and the defendants John D. Graul, John Nester and R. Thomas Nester are and were at said times the tenants in possession of said property and premises, and that the defendant, the city of St. Louis, is and was at all of said times a municipal corporation organized and existing under the laws of the State of Missouri; that at said times said South Second street at said number 425 and the sidewalks pertaining thereto constituted public highways of said city.

"Plaintiff states that on the 14th day of June, 1897, the defendants, Andrew W. Schrick, John D. Graul, John Nester and R. Thomas Nester then in possession of said premises, caused a cellar door in the sidewalk to be opened, thereby causing an opening or excavation in the sidewalk in front of the premises aforesaid owned by said defendants Helena Wallhauser and Henry W. Wallhauser and leased of them by defendants Schrick and Nester; that said cellar door had been habitually left open for a long time prior thereto and constituted a nuisance, and that the defendant, the city of St. Louis, knew, or by the exercise of ordinary care could have known, that said cellar door had been habitually left open and was so open on said day; that it was the duty of all of said defendants to carefully guard and fence said opening or excavation or to cause the same to be carefully guarded and fenced, so that the said street and sidewalk should be reasonably safe for the public and for persons passing along and using the same.

"But plaintiff says that the defendants so carelessly and negligently conducted themselves in reference to the said opening or excavation, caused by the leaving open of said cellar door, that the same was left unguarded and without sufficient or any...