Gerdes v. Christopher & Simpson Architectural I. & F. Co.

Decision Date19 June 1894
CourtMissouri Supreme Court
PartiesGERDES v. CHRISTOPHER & SIMPSON ARCHITECTURAL IRON & FOUNDRY CO. et al.

MACFARLANE, J.

Plaintiff recovered judgment for $5,000 against the said company and the city of St. Louis for injuries received on account of alleged negligence of defendants in obstructing the street, in the city of St. Louis, by depositing thereon a lot of iron pillars, by said company, with which his wagon collided, in consequence whereof he lost his leg. The petition charged negligence of said company in placing the iron on the street, and of defendant the city of St. Louis in permitting it to remain thereon. The answer was a general denial, and a plea of contributory negligence. Both defendants have appealed.

The accident occurred on South Ninth street, at its intersection with Park avenue. Park avenue runs east and west through the city, and is 36 feet wide between the curbing. Ninth street runs north and south. South Ninth street runs into Park avenue, and North Ninth street, running north, leaves said avenue about 100 feet east of the intersection of South Ninth. The grade of Park avenue between these intersections is about 5 inches lower towards the east. The foot walk across South Ninth street is nearly level. This street descends to the north 3 inches in 50 feet, and is 30 feet wide between the curbing. The defendant company is engaged in the manufacture of iron pillars and other material for use in the construction of buildings. Its works are located on the corner of South Ninth street and Park avenue, fronting west on the former and south on the latter street. After heavy iron columns were manufactured by said company, they were laid on these streets, outside the curbing, until they could be hauled away. This use of the streets was permitted by the city, though no ordinance giving permission was shown. This was a manufacturing locality, and other manufacturers in the neighborhood made a like use of the streets. Defendant company sometimes kept iron pillars on the streets for some weeks before they were removed. More or less of material of the kind was generally on the street. On the day of the accident, said defendant had columns 10 inches in diameter piled on the side of each of these streets. Those on Ninth street extended out from the curb to a distance estimated by witnesses at from 6 to 15 feet. They were piled on top of each other, as explained, like cannon balls. The evidence tended to show that they extended still further into Park avenue, the ends being near the corner on that street, and north of the cross walk on Ninth. How long these pillars had remained there does not appear definitely, but some of them, certainly, for several days. They made a pile 3 or 4 feet high. On the afternoon of the accident, September 7, 1890, plaintiff borrowed a light one-horse wagon, without springs, having on it a bed or box used for hauling manure. To this wagon he hitched a three year old horse, which was gentle and tractable. He loaded the wagon with five bundles of kindling wood, each weighing about 100 pounds, and started to take it home. He traveled down South Ninth street to Park avenue; he crossed over that avenue to the north side, and thence east, allowing the wheels of the wagon to rub against the curb, to act as a brake. When he reached the corner of Ninth street he discovered a sewer inlet at the corner of the curb, extending out about a foot. To avoid this inlet, he turned, or curved, to the right. Plaintiff, as a witness, related what occurred as follows: "When I got near the corner, there was a sewer hole there, and I turned off to get around the sewer hole, — made a swing around, — and, when I got around the corner (you cannot hold back there after you have made the turn), I kind of looked down Park avenue. Saw another big pile of iron there, and another big wagon going along there, which cut that street off. I was trotting along there. Kept on turning as short as I could, and thought I could make it anyhow. Turned as short as I could. Turned my wheel against the box. All at once gave a jar, and I seen the wagon wheel against the iron, and it kind of sank down, and the front box tipped up, and threw me away over on the posts. * * * When I looked back, after I felt the jar, I saw the right hind wheel against the iron. Front wheel was past the iron. I had turned short to get past, and to squeeze the front wheel past, and the hind wheel kind of slipped over, and caught the iron posts, and the wheel was against one of the posts. As soon as it jarred, the wagon sank down, and the front part of the box tipped sideways, and I was thrown on the iron." Plaintiff further testified that the collision occurred 8 or 9 feet north of the cross walk; that the horse was on the cross walk before he saw the iron, and discovered that it was dangerous; could not stop because the wagon was pushing the horse; he checked him up. There was a great and irreconcilable conflict in the evidence as to the cause and manner of the accident, particularly as to whether the wheel of the wagon touched the iron at all, and as to the distance the iron extended into the street.

At the close of the evidence, defendants asked an instruction in the nature of a demurrer to the evidence, which was refused. To this action of the court, error is assigned, on the ground that no negligence of defendants was shown, and that plaintiff was conclusively shown to have been guilty of contributory negligence. The other errors assigned are to the admission of evidence and the giving of instructions.

1. The general rule which has been repeatedly declared by this court is that "municipal corporations are bound to keep their streets and highways in a proper state of repair, and free from obstructions, so that they will be reasonably safe for travel; and if, having notice of defects or obstructions, they neglect to repair or remove them, they will be liable for all injuries:" provided, that he who received the injury was himself, at the time, in the exercise of due care. Smith v. City of St. Joseph, 45 Mo. 452; Flynn v. City of Neosho, 114 Mo. 572, 21 S. W. 903, and cases cited. There is a well-recognized qualification to this strict rule, which is declared by Judge Dillon in this language: "But it is not every obstruction, irrespective of its character or purpose, that is illegal, even though not sanctioned by any express legislative or municipal authority. On the contrary, the right of the public to the free and unobstructed use of a street or way is subject to reasonable and necessary limitations and restrictions. The carriage and delivery of fuel, grain, goods, etc., are legitimate uses of a street, and may result in a temporary obstruction of the right of public travel. * * * Temporary obstructions of this kind are not invasions of the public easement, but simply incidents to or limitations of it. They can be justified when, and only so long as, they are reasonably necessary. There need be no absolute necessity. It suffices that the necessity be a reasonable one." Dill. Mun. Corp. § 730, and cases cited; Stephens v. City of Macon, 83 Mo. 346; Welsh v. Wilson, 101 N. Y. 256, 4 N. E. 633. There can be no doubt, under this obviously just...

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  • Megson v. City of St. Louis
    • United States
    • Missouri Supreme Court
    • May 13, 1924
    ...444; Soeder v. Ry. Co., 100 Mo. 673, loc. cit. 681, 13 S. W. 714, 18 Am. St. Rep. 724; Gerdes v. Iron Co., 124 Mo. 347, loc. cit. 355, 27 S. W. 615; Perrgo v. St. Louis, 185 Mo. 274, loc. cit. 286, 84 S. W. 30; Flynn v. Neosho, 114 Mo. 567, loc. cit. 572, 18 S. W. 973; Cohn v. City of Kansa......
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    • March 14, 1949
    ...203, 23 S.W. 1056; Walton v. A.B.C. Fireproof Warehouse Co., 235 Mo. App. 939, 151 S.W. (2d) 494; Gerdes v. Christopher & Simpson Architectural Iron & Foundry Co., 124 Mo. 347, 27 S.W. 615; State v. Hamilton, 304 Mo. 19, 263 S.W. 127; Pulitzer v. Chaplin, 337 Mo. 298, 85 S.W. (2d) 400. (4) ......
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    ...468; Struckle v. Busch Suizer Bros. Diesel Engine Co., 300 S.W. 993; Maus v. Springfield, 101 Mo. 613; Gerdes v. Christopher & Simpson Architectural Iron & Foundry Co., 27 S.W. 615; Chilton v. St. Joseph, 44 S.W. 766; Bradley City of Spickardsville, 90 Mo.App. 460; Pierette v. Kansas City, ......
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    ...14 S. W. 630; Cohn v. Kansas, 108 Mo. 393, 18 S. W. 973; Gerdes v. Christopher & S. Architectural Iron & F. Co. 124 Mo. 347, 25 S. W. 557, 27 S. W. 615; Beauvais v. St. Louis, 169 Mo. 500, 69 S. W. 1043, and cases cited. Vermont—Coates v. Canaan, 51 Vt. 131, 137. Washington—Jordan v. Seattl......
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