Fink v. City of St. Louis

• Decision Date: 31 October 1879
• Citation: 71 Mo. 52
• Parties: FINK v. THE CITY OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

71 Mo. 52

FINK

v.THE CITY OF ST. LOUIS, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

This was an action brought against the City of St. Louis and the St. Louis Tunnel Railroad Company, to recovel damages for injuries occasioned to plaintiff's property by negligence in making an excavation for a sewer. Plaintiff's property consisted of a dwelling house fronting and abutting upon Eighth street, in said city. The Tunnel Railroad Company was a corporation organized under the general laws of the State, for the purpose of building a subterranean railroad to connect the bridge over the Mississippi river with the railroads leading into the city on the west side of the river. The route of this railroad lay along Eighth street and immediately in front of plaintiff's property. In order to build a tunnel through which the road should run, the company made a deep excavation in the street. In making this excavation it became necessary to remove a public sewer which ran down the middle of the street, and to reconstruct it outside of the tunnel wall, and between this wall and plaintiff's house. The negligence complained of occurred in making the excavation necessary for this new sewer, and the injury consisted o. the caving in of plaintiff's ground and the cracking and breaking of his walls, whereby the house was made unsafe and plaintiff lost rents.

The statute under which the Tunnel Railroad Company was organized provided that every company organized under it should have power to construct its road across, along or upon any street which the route of its road should intersect or touch, but the company should restore the street to its former state, or to such state as not unnecessarily to impair its usefulness; and that nothing in the statute contained should authorize the construction of a road in, upon or across any street in any city without the assent of the corporate authorities of the city. 2 Wag. Stat., p. 296, §§ 1, 2. The city council of the city of St. Louis passed an ordinance giving its assent to the building of the tunnel railroad in Eighth street. By the 4th section of the ordinance it was provided that if in the course of the construction of the tunnel it should be necessary to out under or through any main or district sewer, or water or gas pipe, it should be the duty of the company, before severing any such sewer or pipe, to notify the mayor and city engineer, and to reconstruct and rebuild such sewer or pipe in such manner as the mayor and city engineer might direct, and under the supervision of the city engineer. The evidence showed that plans of the work were submitted by the company to the city authorities. On the part of the city evidence was offered to show that the city engineer exercised no supervision or control over the work whatever; but on objection from the plaintiff this evidence was excluded.

For the plaintiff the court instructed the jury as follows: If the jury believe that said building or premises were damaged and injured by reason of any unskillfulness or want of due care or precaution in the construction of or excavating for a sewer under the sidewalk in front of said premises on Eighth street, or by reason of any unskillfulness or want of due care or precaution in protecting or providing for the protection of plaintiff's house and premises from injury from such excavation, then the jury will find for the plaintiff against the city. The city prayed the court to instruct as follows: If the jury believe from the evidence that the city did not exercise any supervision or control over the excavation in front of plaintiff's premises, but that said excavation was made by the tunnel company, its contractors and servants, under the supervision and direction of and pursuant to plans prepared by the engineers of said tunnel company, then there can be no recovery herein against the city. But the court refused so to instruct. There was a verdict and judgment for plaintiff against both defendants, from which the city alone appealed to the court of appeals, and, upon affirmance pro forma there, again appealed to this court. The giving and refusing of instructions and the exclusion of evidence present the question for decision by this court.

Leverett Bell for appellant.

The city is not liable. The injury was caused by the railroad company in the construction of its tunnel. The authority to do this emanated from the State, as did the power to build, maintain and operate the railroad. The condition annexed by the statute that the consent of the city should first be obtained, was inserted for the protection of the public. It was not intended to create any liability against the city that did not otherwise exist. But for this condition the company could have built without the city's assent. A. & P. R. R. Co. v. St. Louis, 66 Mo. 228.

The removal and reconstruction of the sewer was made necessary by the tunnel, and was a mere incident of that work. The fact that the excavation was made for a sewer, does not impose any hability on the city other than that borne by it in the matter of the excavation for the tunnel. It is not the case of the city undertaking to build a sewer in the first instance. The sewer existed. The duty of the city in relation thereto was fully discharged and terminated. The occupation of the street by the tunnel company...