Hesselbach v. City of St. Louis

• Decision Date: 10 February 1904
• Citation: 78 S.W. 1009,179 Mo. 505
• Parties: HESSELBACH v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

78 S.W. 1009

179 Mo. 505

HESSELBACH v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

MUNICIPAL CORPORATIONS—OBSTRUCTIONS ON SIDEWALK — REPAIRS TO STREET — NEGLIGENCE OF CONTRACTOR—NEGLIGENCE OF CITY—THEORY OF RECOVERY—RIGHT TO USE OF SIDEWALK—DANGEROUS OBSTRUCTIONS.

1. Where a contractor, under permission of the city, tears up a public street to construct a public improvement, its duty does not end when it properly piles up the paving stones or places guards around excavations; but it is its continuing duty to use reasonable care to keep such stones safely piled and such excavations properly guarded, although, if it sees that the street is in a safe condition at the close of business each day, and some third person scatters the stones or removes the guard during the night, neither the contractor nor the city is liable.

2. Where a sidewalk was 12 feet wide, a pile of stones placed thereon by a contractor, which occupied only from 3 to 5 feet of that width, and which were so piled that the outside of the pile was a perpendicular wall about 5 feet high —the loose stones being thrown in between the walls—was not necessarily a dangerous obstruction to persons traveling on the sidewalk.

3. A temporary use of a street for the purpose of building houses or making improvements, and for a reasonable time, is a lawful use, and what is a reasonable time is to be determined by the circumstances of the case.

4. In an action for negligence, where plaintiff failed to make out a case against defendant, a judgment rendered on a verdict in favor of defendant will be affirmed, notwithstanding errors in instructions given on defendant's behalf.

5. In an action against a city and a contractor for injury to a pedestrian caused by stones being piled or scattered on the sidewalk, where plaintiff, in her petition, and in instructions given in her behalf, predicated her right of recovery solely on the negligent obstruction of the sidewalk by the contractor, and the permission of the obstruction by the city, she was not entitled to a judgment against the city, where she failed to obtain, and did not show herself entitled to, a judgment against the contractor.

6. Where plaintiff predicated her right to recovery against a city solely on the city's negligence in permitting a contractor to pile stones in such manner as to necessarily and dangerously obstruct travel on the sidewalk, she could not recover on any other act of negligence, even if it were such that, if properly pleaded, it would have afforded a cause of action.

Appeal from St. Louis Circuit Court; Jno. W. McElhinney, Judge.

Action by Lena F. Hesselbach against the city of St. Louis, the Fruin-Bambrick Construction Company, and another. From a judgment in favor of plaintiff, defendant city of St. Louis appeals; and from a judgment in favor of defendant Fruin-Bambrick Construction Company, plaintiff appeals. Reversed on defendant city's appeal, and affirmed on plaintiff's appeal.

Chas. W. Bates and Benj. H. Charles, for appellant. A. R. Taylor, Morris Tucker, and Seddon & Holland, for respondents.

MARSHALL, J.

This is an action for $10,000 damages for personal injuries received by the plaintiff on October 1, 1900, on the west side of Broadway, just south of Penrose street, in the city of St. Louis, in consequence, it is alleged, of tripping over some paving blocks that had been negligently placed and allowed to remain on the sidewalk by the defendants. The suit was originally against the St. Louis Transit Company, the Fruin-Bambrick Construction Company, and the city of St. Louis. But at the close of the plaintiff's case the plaintiff voluntarily dismissed the case as to the transit company, and the court sent the case to the jury against the other two defendants. The jury found a verdict in favor of the Fruin-Bambrick Construction Company, but returned a verdict against the city of St. Louis for $1,000. The city appealed from the judgment against it, and the plaintiff appealed from the verdict and judgment in favor of the Fruin-Bambrick Construction Company.

The negligence charged in the petition is that prior to October 1, 1900, the St. Louis Transit Company and Fruin-Bambrick Construction Company "had caused to be placed on the sidewalk," at the place of the accident, "large stones, which were a dangerous obstruction to the use of said sidewalk by pedestrians lawfully passing thereon; and at the time of plaintiff's injuries there were no signal lights or other lights on or about said stones so placed upon said sidewalk, to warn persons of the presence of said stones, and the dangers therefrom, as required by the ordinance of the city of St. Louis in such cases, though it was after night and dark at the time of plaintiff's injuries as herein stated." It is then alleged that the said defendants were negligent in so placing, and in not lighting the place, and that such negligence directly contributed to cause the plaintiff's injuries. It is then alleged that while the plaintiff was passing along said sidewalk on October 1, 1900, after dark, "she came in contact with said stones so placed upon said sidewalk, and was thereby caused to fall upon said stones and the sidewalk," and was seriously injured. The negligence of the city is thus charged. "And plaintiff avers that the two first named defendants were so using said sidewalk to place said stones thereon with the knowledge and permission of the city of St. Louis, and that the defendant city of St. Louis, by the proper officers and agents in charge of keeping the streets in proper repair, well knew of said obstructions upon said sidewalk, yet negligently permitted the same to exist, and thereby directly contributed to cause the plaintiff's said injuries." The defendants pleaded separately, and their answers are general denials, coupled with a plea of contributory negligence.

The evidence adduced for the plaintiff showed that the St. Louis Transit Company had nothing to do with the matter, and so plaintiff voluntarily dismissed as to it. The evidence showed that for some time prior to October 1, 1900, the Fruin-Bambrick Construction Company, under a contract with the St. Louis Railroad Company, had been engaged in the work of taking up the old cable road on Broadway, and in putting down a new electric street railroad. In doing this work, the construction company took up the granite paving blocks, which were about 6 inches long, about 4 inches wide, and about 4 inches thick, and piled them along the west side of the street, partly on the street and partly on the sidewalk. They were piled in "ricks"; that is, a perpendicular wall of paving blocks was built up about 3 feet high near the outside of the sidewalk, and a similar wall was built on the street, thus leaving a space of 4 or 5 feet between the two walls. Into this space the other paving blocks were loosely thrown. As thus built, a smooth, perpendicular, granite wall, about 3 feet high, was located near the outside of the sidewalk. At the place of the accident the sidewalk was 12 feet wide, so that there was a space of at least 8 feet between the granite wall so built and the buildings on the inside of the sidewalk. The sidewalk was made of brick, and was in good repair, as far as it appears from the evidence. This condition had existed for several weeks prior to the accident. The plaintiff had lived at 4036 North Broadway for a year before the accident, and her house was on the east side of Broadway, and on the opposite side of the street from that on which the accident occurred. On the evening in question she went to see Dr. Orth, who lived on Penrose street, which is the street north of the block on which the accident occurred. In going, she went along the east side of Broadway, which had no paving blocks piled on it, to Penrose street, and thence on that street to the doctor's office. On returning, she took the west side of Broadway. She knew the condition of the sidewalk, with reference to the pile of paving blocks, for she said she could see it from her window. She went south on the west side of Broadway until, she says, she was in front of Eckmeier's coalyard, when she says she fell over a stone that was lying on the sidewalk, and injured herself. No one was with her, except her little daughter, who was 11 years old. She says that there were a good many stones scattered pellmell on the sidewalk, and that she had seen them there for over 4 weeks before the accident, and that there were no lights or danger lights there. After she fell, she says, two young men offered to help her to rise, but she felt bashful, and raised herself up. On cross-examination she said: "Everything was full of stones. There were stones piled up, and stones lying loose on the sidewalk. At Eckmeier's coalyard it was full of stones, and all Broadway was full of stones on the west side"—and that she fell at Eckmeier's coal-yard, and there was no light there, and "that she could not tell whether she tripped against a loose stone on the sidewalk, or a pile of stones." Later she said it was loose stones she ran against. The plaintiff's daughter corroborated her testimony. Mrs. Henry Kueha testified that she passed along Broadway every day, and that there were stones on the sidewalk—some in piles, some spread out over the pavement; that there were more in some places than in others; and that in front of Eckmeier's was the worst place. James Mulhern testified for the plaintiff that he was an inspector for the street railroad. He testified to the piling of the granite blocks, and said the pile extended about 28 inches onto the sidewalk, and that the balance of the sidewalk was left clear and unobstructed. He also testified that there was a street car strike going on in St. Louis at that time, and that boys and other persons would throw stones on the sidewalk; that any one could see the pile of stones on the outer edge of the sidewalk, even at...