Glasgow v. City of St. Joseph

• Decision Date: 04 December 1944
• Docket Number: No. 39046.,39046.
• Citation: 184 S.W.2d 412
• Parties: FLORENCE T. GLASGOW v. CITY OF ST. JOSEPH, Appellant.
• Court: Missouri Supreme Court

184 S.W.2d 412

FLORENCE T. GLASGOW v. CITY OF ST. JOSEPH, Appellant.

No. 39046.

Supreme Court of Missouri.

Division Two, December 4, 1944.

Rehearing Denied, January 2, 1945.

Appeal from Buchanan Circuit Court. — Hon. Emmett J. Crouse, Judge.

AFFIRMED.

Homer C. King, City Counselor, Bart M. Lockwood and Wm. H. Utz, Jr., Assistant City Counselors, for appellant.

(1) The demurrer should have been sustained because plaintiff must produce evidence that defendant was guilty of negligence and that such negligence directly contributed to the injuries, before being entitled to judgment. Leuttecke v. St. Louis, 140 S.W. (2d) 45. (2) The defendant city is not liable for a slippery condition on its streets produced by rains falling immediately before the injury occurred. Leuttecke v. St. Louis, 140 S.W. (2d) 45; Wolf v. Kansas City, 298 Mo. 85, 246 S.W. 236. (3) Until water and mud on a highway becomes a dangerous obstruction and has existed a long enough time for the city in the exercise of reasonable care to know of its dangerous character and to remove it, it is not negligence and the city is not liable. Brolin v. City of Independence, 114 S.W. (2d) 199; Manning v. Kansas City, 222 S.W. 927; Badgley v. St. Louis, 149 Mo. 22, 50 S.W. 817; Long v. Woolworth, 109 S.W. (2d) 85; Smith v. Sears Roebuck & Co., 117 S.W. (2d) 658; Leuttecke v. St. Louis, 140 S.W. (2d) 45. (4) It is a well established rule of law that where a city's street has been rendered dangerous for use by the unauthorized act of a third person, the city cannot properly be held liable for injuries resulting from the dangerous condition of the street so caused until it has received actual or constructive notice of the dangerous or defective condition of the street, and after the reception of such actual or constructive notice, sufficient time has elapsed to enable the city in the exercise of reasonable diligence to remedy the defect prior to the occurrence of the injury. Nimmo v. Perkinson Bros. Const. Co., 85 S.W. (2d) 98; Carrington v. St. Louis, 89 Mo. 208, 1 S.W. 240; Hunt v. St. Louis, 278 Mo. 213, 211 S.W. 673; Baustian v. Young, 152 Mo. 317, 53 S.W. 921; McKissick v. St. Louis, 154 Mo. 588, 55 S.W. 859. (5) The giving of an instruction failing to require casual connection between defendant's negligence and the damages sustained by plaintiff is reversible error. Frank v. Melito, 251 S.W. 95; Stermolle v. Brainard, 24 S.W. (2d) 712-14; O'Leary v. Scullin Steel Co., 260 S.W. 55; White v. Handy, 245 S.W. 613-614; Edmondson v. Mo. Pac. Ry., 264 S.W. 470; Nagel v. Thompson, 170 S.W. (2d) 416. (6) Instruction 1 is erroneous in that it fails to require a finding that written notice of claim was made by plaintiff on the Mayor as required by Sec. 6577, R.S. 1939. Rice v. Kansas City, 16 S.W. (2d) 659; Dohring v. Kansas City, 71 S.W. (2d) 170; David v. St. Louis, 96 S.W. (2d) 353; Cole v. St. Joseph, 50 S.W. (2d) 623. (7) An instruction which fails to allow the municipality a reasonable time in which to remedy or remove the obstruction after receiving notice thereof is reversibly erroneous. Allen v. Kansas City, 64 S.W. (2d) 765; Pearce v. Kansas City, 137 S.W. 629; Ballard v. Kansas City, 104 S.W. 1126; Nimmo v. Perkinson Bros. Const. Co., 85 S.W. (2d) 98; Richardson v. City of Marceline, 73 Mo. App. 360; Gerber v. Kansas City, 79 S.W. 717, 105 Mo. App. 191; Hitchings v. City of Maryville, 115 S.W. 473, 134 Mo. App. 712; Suttmoeller v. St. Louis, 230 S.W. 67.

Strop & Strop and Abe Goldman for respondent.

(1) A municipal corporation having complete control of its streets has a duty to keep them in repair so that the surface will not be dangerous to persons travelling thereon. Lowery v. Kansas City, 85 S.W. (2d) 104; Benton v. St. Louis, 217 Mo. 687. (2) A city or municipality has actual notice of the condition of its streets if it is shown that the officers or agents of the city or municipality had knowledge of said condition. Willis v. St. Joseph, 171 S.W. 27, 184 Mo. App. 428; Adelman v. Altman, 240 S.W. 272. (3) When a city or municipality knows a condition exists in a street that recurs after rains, it is the city's duty to remove the obstruction or to remedy the cause therefor. Benton v. St. Louis, 248 Mo. 98; Henson v. Kansas City, 210 S.W. 13; Barr v. City of Fairfax, 156 Mo. App. 295; Milledge v. Kansas City, 100 Mo. App. 490. (4) Section 6577, Revised Statutes of Missouri, for 1939, does not require notice to be given to city in cases where the injured party dies as a result of injuries received and caused by the negligence of city. 25 C.J.S., sec. 30, l.c. 1103; Cummins v. Kansas City Pub. Serv. Co., 66 S.W. (2d) 920; Diariotti v. Mo. Pac. Ry. Co., 170 S.W. 865. (5) Plaintiff's Instruction No. 1 is not open to review by this court, because defendant's assignment of error that said instruction is erroneous, misleading and conflicting and gave the jury a roving commission, does not follow allegations of the petition and omits necessary elements and findings, is too general and is in violation of Rule 15 of this court. Saffran v. R.I. Ins. Co. of Providence, 141 S.W. (2d) 98; Banty v. City of Sedalia, 120 S.W. (2d) 59; Langston v. Howell Co., 108 S.W. (2d) 19; Linneman v. Hawkins, 27 S.W. (2d) 1046; Plater v. W.C. Mullins Const. Co., 17 S.W. (2d) 658; Young v. Sinclair Refining Co., 92 S.W. (2d) 995; Wright v. Stickler, 96 S.W. (2d) 932; White v. McCoy Land Co., 87 S.W. (2d) 672. (6) Defendant's points and authorities are mere abstract propositions of law and do not cure the generalities contained in defendant's assignment of errors as to plaintiff's Instruction 1. Majors v. Malone, 100 S.W. (2d) 300; Willard v. Robinson, 129 S.W. (2d) 911; Eisenbarth v. Powell Bros. Truck Lines, 161 S.W. (2d) 263. (7) Plaintiff's Instruction No. 1 is not erroneous because it failed to have the jury find that the plaintiff had instituted this suit within six months of the death of the deceased, as this was an admitted fact during the trial of the case. Lewis v. Terminal Railroad Assn., 61 S.W. (2d) 234; Buck v. Radcliff Motor Co., 125 S.W. (2d) 888; Hill v. St. Louis Public Serv. Co., 64 S.W. (2d) 633. (8) Plaintiff's Instruction 1 is not erroneous because it omits a finding that a notice of claim was timely filed by the plaintiff, as a notice is no part of plaintiff's case where the cause of action is for death resulting to the injured party, caused by the negligence of the City. Diariotti v. Mo. Pac. Ry. Co., 170 S.W. 865; 25 C.J.S., sec. 30, l.c. 1103; Cummins v. Kansas City Public Serv. Co., 66 S.W. (2d) 920. (9) Plaintiff's Instruction 1 required a finding that the defendant had actual notice of the condition of Frederick Avenue at the place of the accident. Therefore, it was not necessary to make the jury find that the defendant had constructive notice thereof, as plaintiff took upon herself a greater burden than that required by law in making the jury find that the city had actual notice. Berry v. St. Louis, M. & S.E.R. Co., 114 S.W. 27; Potterfield v. Terminal Railroad Assn., 5 S.W. (2d) 447. (10) Plaintiff's Instruction 1 required a finding of causal connection between the injuries received by plaintiff's husband and the negligence of the defendant city, and it is unnecessary for the instruction to state that said negligence was the direct and proximate cause of the injuries from which the deceased later died. Cornovoski v. St. Louis Transit Co., 106 S.W. 51; Wheeler v. Breeding, 109 S.W. (2d) 1237; Westerman v. Brown Cab Co., 270 S.W. 142; Sutter v. Metropolitan Street Ry. Co., 208 S.W. 851; Weiss v. Soderman Heat & Power Co., 227 S.W. 837; Kaiser v. Jaccard, 52 S.W. (2d) 18. (11) Plaintiff's Instruction 1 required a finding that the city knew that mud and water accumulated on said street; that the city knew of said condition; and that the city knew that the condition so created was dangerous, thereby including in said instruction all elements necessary to establish liability against the city in this regard. Sanders v. City of Carthage, 51 S.W. (2d) 529; Berberet v. Electric Park Amusement Co., 3 S.W. (2d) 1025; Bielman v. St. Joseph, 260 S.W. 529. (12) Plaintiff's Instruction 1 required the jury to find that the city had a reasonable time in which to correct the dangerous condition mentioned in plaintiff's instruction; and also plaintiff's Instruction 1 taken into consideration with defendant's Instruction 8, properly declared the law to the jury, and under the facts of this case plaintiff was not required to submit such an issue to the jury. Merritt v. Kansas City, 46 S.W. (2d) 275; Barnes v. St. Joseph, 151 Mo. App. 523; Drimmel v. Kansas City, 180 Mo. App. 339; Adelman v. Altman, 240 S.W. 272; Smith v. Kansas City Pub. Serv. Co., 56 S.W. (2d) 838; Barr v. Kansas City, 105 Mo. 550. (13) Defendant's Assignments of Error Nos. 3 and 4 cannot be considered by this court (a) because said assignments of error are not carried forward by the defendant; nor is the court cited to any authority to support said assignments of error; (b) the defendant does not refer the court to the pages of the record where the alleged improper evidence appears, nor to the pages in the record where the trial court refused to admit alleged competent evidence of defendant. Bank of Brinson v. Graham, 76 S.W. (2d) 376; Burch v. Cleveland, C.C. & St. L. Ry. Co., 40 S.W. (2d) 688; Thompson v. City of Lamar, 17 S.W. (2d) 960. (14) Evidence that the condition of Frederick Avenue as shown on plaintiff's Exhibit A had existed from two to four years prior to the date of accident was not error. Merritt v. Kansas City, 46 S.W. (2d) 275.

BOHLING, C.

The City of St. Joseph appeals from a judgment awarding Florence T. Glasgow $10,000 damages for the death of her husband, James A. Glasgow, resulting from injuries received in an accident on June 25, 1942, on Frederick avenue in said city. The assignments of error question the submissibility of plaintiff's case, the correctness of plaintif...