Heberling v. City of Warrensburg
| Decision Date | 11 June 1907 |
| Citation | 103 S.W. 36,204 Mo. 604 |
| Parties | HEBERLING v. CITY OF WARRENSBURG, Appellant |
| Court | Missouri Supreme Court |
Appeal from Johnson Circuit Court. -- Hon. William L. Jarrott Judge.
Affirmed.
James A. Kemper and Charles E. Morrow for appellant.
(1) The demurrer to the evidence should have been given. The petition declares upon a defective construction; that is, that a certain box culvert in a dirt street was negligently and carelessly removed and the place filled in with dirt. Haines v. Pearson, 100 Mo.App. 551. Inasmuch as all the evidence shows that the place was filled in the usual and customary way and was safe for travel when finished, and that if it ever became unsafe and dangerous it became so afterwards by reason of the rains and the travel over it plaintiff failed to make a case under his petition and the instructions in the nature of a demurrer to the evidence asked by defendant at the close of plaintiff's evidence and again at the close of all the evidence, should have been given. The judgment was for the right party, and must stand, regardless of any alleged error in the instructions. Haines v. Pearson, supra. (2) The court erred in granting a new trial on account of instruction seven given for defendant. This instruction was properly given in this case and has been approved. Womach v. St. Joseph, 168 Mo. 236; Wheat v. St. Louis, 179 Mo. 572; Kaiser v. St. Louis, 185 Mo. 374; Coffey v. Carthage, 186 Mo. 585; Jackson v. Kansas City, 106 Mo.App. 57.
O. L. Houts for respondent.
If for any reason assigned in the motion, the verdict should have been set aside, this court will affirm the ruling of the trial court. Ittner v. Hughes, 133 Mo. 679; Hewett v. Steele, 118 Mo. 463; Bank v. Armstrong, 92 Mo. 265; State ex rel. v. Adams, 84 Mo. 310. The trial court committed error materially affecting the merits of plaintiff's case in giving instruction 7, at the request of defendant, and the new trial was properly granted for that reason. (1) The instruction told the jury that if plaintiff knew, or could have known of the "rut or depression" in the street and could have avoided it, he could not recover. That is, that mere knowledge of the existence of the "rut or depression" with no knowledge that it was dangerous, would preclude a recovery as a matter of law in the case. That, of course, is not the law. In addition to knowledge of the "rut or depression" plaintiff must have had knowledge that it was dangerous and necessarily dangerous before he would be precluded from recovering because he attempted to use the street and pass over the "rut or depression." And whether plaintiff had such knowledge could not have been determined by the court as a matter of law. That was a question of fact which should have been submitted to the jury, had there been any evidence to base such submission upon. Beach on Contributory Negligence, sec. 273; Horton v. Ipwich, 12. Cush. 448; Holloway v. City, 7 N.Y.S. 363. Under the decisions of this court the instruction is clearly wrong. Graney v. St. Louis, 141 Mo. 180; Maus v. Springfield, 101 Mo. 613; Chilton v. St. Joseph, 143 Mo. 192; Gerdes v. Iron & Foundry Co., 124 Mo. 347; Flynn v. Neosho, 114 Mo. 567; Barr v. City of Kansas, 105 Mo. 560; Perrette v. City of Kansas, 162 Mo. 238; Beauvais v. St. Louis, 169 Mo. 500; Perrigo v. St. Louis, 185 Mo. 274. (2) The instruction is erroneous because of the words "or by the exercise of ordinary care could have known." In other words, it required plaintiff to look for defects in the street. That was not the duty of plaintiff. It was the duty of defendant to look for defects and to keep the streets in a reasonably safe condition. Plaintiff had a right to presume that defendant had done its duty and that the street was not in a dangerous condition. Perrette v. Kansas City, 162 Mo. 238; Holloway v. Kansas City, 184 Mo. 29; Roe v. Kansas City, 100 Mo. 190; Drake v. Kansas City, 190 Mo. 385; Stout v. Columbia, 118 Mo.App. 439. (3) The instruction should not have been given because there was not a scintilla of evidence to base it upon, or tending to show that plaintiff knew of this "rut or depression" or of its dangerous condition, and he could not have known, because it was completely concealed and hidden. Kossman v. St. Louis, 153 Mo. 293; Perrette v. Kansas City, 162 Mo. 238; Holloway v. Kansas City, 184 Mo. 19.
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 two feet deep and about eighteen 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 and earth from said culvert and filled the same with soft or loose dirt or earth and by reason thereof rendered 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 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 dash board 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 fifteen thousand dollars, 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 employees 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 as 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 employees...
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