Gerdes v. Christopher & Simpson Architectural I. & F. Co.
Decision Date | 19 June 1894 |
Court | Missouri Supreme Court |
Parties | GERDES v. CHRISTOPHER & SIMPSON ARCHITECTURAL IRON & FOUNDRY CO. et al. |
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: 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: 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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