George Mkt. v. City of St. Louis

• Decision Date: 31 March 1874
• Citation: 56 Mo. 189
• Parties: GEORGE MARKET, Appellant, v. THE CITY OF ST. LOUIS, Respondent.
• Court: Missouri Supreme Court

56 Mo. 189

GEORGE MARKET, Appellant,

v.THE CITY OF ST. LOUIS, Respondent.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

Smith P. Galt, for Appellant.

E. P. McCarty, for Respondent, cited in argument: Mayer vs. Sheffield, 4 Wal., 195; Dillon on Municipal Corporations, § 790, p. 759-60-61; Cole vs. Village of Medina, 27 Barb., 218;Peck vs. Same, 32 Barb., 134; Hart vs. City of Brooklyn, 36 Barb., 229; Van Dyke vs. Cincinnati, 1 Dis. 737-8; McGinity vs. City of New York, 5 Duer., 674.

NAPTON, Judge, delivered the opinion of the court.

This action was brought to recover the value of a mule alleged to have been injured in driving over Second street, by reason of a ditch on the south side of Cass Avenue, alleged to have been left in an unsafe condition by the negligence of defendant.

There was no question that the ditch was washed out and unfit for crossing, and that plaintiff's wagon in crossing the ditch or gutter, suddenly sank into it so that the pole of the wagon was thrown upon one of the four mules in the team and broke his leg.

There was no question that this gutter had been out of repair for a month or so, before this accident, and that plaintiff knew of the unsafe condition of the crossing. The plaintiff was engaged in hauling coal to a manufacturing establishment, situated on Second street, just south of Cass Avenue. This place was accessible by another route, but it does not appear that the plaintiff was advised of any other way of getting his coal to the place of delivery than the route he took. The city authorities were not advised of the bad condition of this gutter until a day or two before the accident, and repairs were made on the day succeeding.

Upon the evidence the court instructed the jury that the plaintiff was not entitled to recover unless the defendant (the city) was notified of the unsafe condition of said gutter and neglected to repair it in a reasonable time thereafter. Notwithstanding this instruction the jury returned a verdict for plaintiff.

Of course, where a street is out of repair from a casual rainstorm or any other sudden and unforseen violence, the city cannot be held responsible for accidents occasioned by such sudden occurrences, until the authorities have had a reasonable time to make the necessary repairs. But if a reasonable time has elapsed, as was the case here, where the defect continued for two months, no express notice is necessary. (Regner vs. The City of Rochester, 45 N. Y.,...