Heckler v. City of St. Louis

• Decision Date: 13 February 1883
• Citation: 13 Mo.App. 277
• Parties: WILHELMINA HECKLER, Appellant, v. CITY OF ST. LOUIS, Respondent.
• Court: Missouri Court of Appeals

13 Mo.App. 277

WILHELMINA HECKLER, Appellant,

v.CITY OF ST. LOUIS, Respondent.

St. Louis Court of Appeals, Missouri.

Feb. 13, 1883.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Affirmed.

F. GOTTSCHALK, for the appellant.

LEVERETT BELL, for the respondent.

LEWIS, P. J., delivered the opinion of the court.

This is an action for damages sustained by the plaintiff in the drowning of her husband in a pond situate within the boundaries of Keokuk Street, in the city of St. Louis. The court instructed the jury, that upon the pleadings and evidence, the plaintiff was not entitled to recover.

The testimony tended to show the following facts: Prior to the accident referred to, Keokuk Street had been regularly laid out and mapped by the city authorities, and municipal ordinances and orders had been adopted and passed, directing that it be improved and thrown open to the public use. No substantial work had been done, however, at the point where the drowning occurred, and the street was still in the original condition of the natural surface of the ground. The pond spoken of covered the whole width of the street, and extended a considerable distance over the private property at each side. The street was much used in its approaches to the pond from either direction, and at that point the customary travel was over private property, around the edge of the pond. The plaintiff and her husband lived for many years close by, and habitually used Keokuk Street, with the deflection around the pond, in passing from their home to other places. The pond had been declared a nuisance, and the first steps were being taken to drain it when the catastrophe occurred. The deceased was returning to his home in the darkness of the night, and while passing around the edge of the pond, on private property, several yards from the street boundary, slipped in and was drowned.

The essential ground of the action is negligence; that is, negligence on the part of the city to perform a duty devolved upon it as a municipal corporation, the performance of which duty would have prevented the loss of the plaintiff's husband by the means described. The duty demanded by this proposition was that of draining the pond and putting the ground covered by it in a passable condition. The conditions require, further, that this draining should have been done before the drowning occurred--since it could have no effect at a later day to prevent the injury complained of. Our inquiry is thus narrowed down to the single question: Did the...