Heberling v. City of Warrensburg.

• Citation: 204 Mo. 604,103 S.W. 36
• Parties: HEBERLING v. CITY OF WARRENSBURG.
• Decision Date: 11 June 1907
• Court: United States State Supreme Court of Missouri

103 S.W. 36

204 Mo. 604

HEBERLING v. CITY OF WARRENSBURG.

Supreme Court of Missouri, Division No. 2.

June 11, 1907.

1. MUNICIPAL CORPORATIONS — DEFECTIVE STREETS — INJURY TO TRAVELER — CONTRIBUTORY NEGLIGENCE.

An instruction in an action for injury from driving over a place in a street where a culvert had been taken out, and the hole filled with loose sand, and where at the time of the accident there was mud and water, that if plaintiff knew [or by the exercise of ordinary care could have known] of the rut or depression, and by the exercise of ordinary care could have avoided it, he could not recover, is erroneous because of the insertion of the bracketed words.

2. SAME — NEGLIGENCE OF STREET COMMISSIONER.

A street commissioner is not necessarily free of negligence in filling in a hole, where a culvert was taken from a street, with loose dirt, rounding it up, because this was the way he filled all such holes.

3. SAME — NOTICE OF DEFECT.

Where a city removed a culvert from a street and filled in the hole with loose dirt, rendering it dangerous in case of heavy rain, the defect was one of its own creation, of which it was bound to take notice.

Appeal from Circuit Court, Johnson County; Wm. L. Jarrott, Judge.

Action by William H. Heberling against the city of Warrensburg. From an order granting plaintiff a new trial, defendant appeals. Affirmed.

Jas. A. Kemper and Chas. E. Morrow, for appellant. O. L. Houts, for respondent.

GANTT, J.

This is an appeal from an order of the circuit court of Johnson county granting the plaintiff a new trial after a verdict for the defendant.

The action was one for damages caused by an alleged defective and dangerous condition of a street in the city of Warrensburg. The petition in substance alleged that the city of Warrensburg on the 17th day of December, 1902, and for a long time prior thereto, was and ever since has been a municipal corporation under the laws of this state, and that it had power and control over the public streets within its corporate limits, and had authority to establish, open, alter, and repair said streets so as to render them safe and secure for the public use and travel thereon, and it was its duty to so maintain and keep in repair the said streets so that at all times they should be safe and secure for public use. Plaintiff further stated that on said 17th of December, 1902, Main street, sometimes called South Main street, and West King street, were two of the streets and public thoroughfares of the said city, Main street running north and south, and King street running east and west crossing each other at right angles that long prior to said 17th of December, 1902, defendant had caused a culvert to be constructed and made on the north line of said King street extending across said Main street in said city at the crossing of said streets; that said culvert or gutter was about 2 feet deep and about 18 inches wide, constructed of boards or planks covered with earth or dirt; that on or about the 8th of December, 1902, the defendant negligently and carelessly removed said boards or planks or earth from said culvert, and filled the same with soft or loose dirt or earth, and by reason thereof rendered said streets and said streets and said culvert unsafe and dangerous to persons driving along and across said streets, and said street remained in such unsafe and dangerous condition on the 17th day of December, 1902, all of which defendant, its agents, and servants well knew and by the exercise of ordinary care might have known. Plaintiff says that on the 17th of December, 1902, while he was driving and being driven in a buggy drawn by a team of horses southward along said Main street towards King Street, at the intersection of said streets, where said culvert had been by the carelessness and negligence of defendant rendered and permitted to remain in an unsafe and dangerous condition as aforesaid, the front wheels of said buggy in which plaintiff was driving or being driven dropped suddenly or sank into said culvert or excavation, whereby and by reason of which plaintiff, without knowledge of the said dangerous condition of the said street and without any negligence upon his part, was thrown violently over the dashboard of said buggy upon said horses and under their feet, and upon the ground, with great force and violence, by reason of which plaintiff was greatly and permanently injured in his arms, legs, chest, spine, abdomen, and whole body, and rendered unable to work, and caused to lose much time, and suffer great mental and physical pain and anguish, and has been compelled to expend large sums of money for medicines and medical attendance to his total damage in the sum of $15,000, for which he prays judgment. Defendant in its answer admitted its incorporation, and that the streets mentioned were public streets and highways of said city as stated in the petition, but denied the other allegations and pleaded contributory negligence. The reply was a general denial.

The evidence tended to show that a wooden culvert was located across Main street and extended across said street and had been so located for a number of years prior to the 17th of December, 1902. On or about December 8, 1902, the street commissioner of the said city with other employés of the city removed this boxing or wooden culvert, leaving a ditch or excavation some 18 inches or two feet in width and about the same depth at the place where the culvert had been located. The sides of the ditch were left perpendicular or almost so, and were compact and hard from long and continuous use of the street by the public. After removing the boxing, the street commissioner caused the same to be filled with loose dirt and left it. The wheels of vehicles passing along the street immediately afterwards sank into this loose dirt, and jolted or bumped against the sides of the ditch. During the intervening week from the 8th to the 17th of December rain and sleet fell and the passing wheels of vehicles dropped to the bottom of the ditch, and in some instances, as the evidence tended to show, sank to the axles of the vehicles. The evidence for the plaintiff also tended to show that the dangerous condition was hidden from persons passing along the street by the loose dirt thrown into it and by water and mud covering the ditch and the street. A number of plaintiff's witnesses testified that on the day of plaintiff's injury they drove into this ditch unaware of its condition, but were not seriously injured. They testified that the ditch could not be seen on account of the loose dirt in it and the water over it, and they did not see it or know of it until the wheels of their conveyances dropped into it. Other witnesses testified to having seen the street commissioner and his employés removing the culvert and filling the ditch, and testified that it was left in an unsafe condition by the commissioner, one of them testifying that he spoke to one of the city employés engaged in the work and said to him, "If you don't fix this place better, some one will get hurt here." The evidence tended to show that the plaintiff was a stockman and a butcher, and lived in Warrensburg and had a slaughterhouse about a mile and a half southwest of the city; that on the day he was injured he got in the two-horse buggy with Frank Houts to ride with him to the plaintiff's slaughterhouse, as Houts went to his home. As the plaintiff and Houts approached this place, they could see the water in the rut, but could not tell how deep it was. They were traveling in a trot, and, as they were attempting to cross this place, the front wheels of the buggy dropped into the rut, the left wheel going down to the hub, and plaintiff was thrown onto and over the dashboard onto the doubletrees. This frightened the horses, and they ran, and plaintiff became entangled with the stray straps and doubletree, and Houts, who was driving in order to stop the team, turned them into a telephone pole by the side of the road, and when they struck this the horses freed themselves from the buggy, and the plaintiff was found to be injured. Defendant's evidence tended to prove that its street commissioner had the box removed from across Main street, that it was 16 inches wide and 14 inches deep, and that they took it out by digging by the side and lifting the box out and then put the dirt back in the hole, and also put in other loose dirt in the place from which the box had been removed, and this dirt was tramped in with the foot, and, when the trench was filled, it was rounded up on the top some 12 inches high above the level of the surface. Witness for the defendant also testified that this was the way they always fixed them up, the way they always left them; that this was the usual and customary way of fixing places of that kind. Defendant also introduced evidence tending to show that the condition of the...