Hines v. Western Union Tel. Co.

• Citation: 217 S.W.2d 482,358 Mo. 782
• Decision Date: 07 January 1949
• Docket Number: 40648
• Parties: Jean M. Hines, Appellant, v. The Western Union Telegraph Company, a Corporation, and City of Joplin, a Municipal Corporation, Respondents
• Court: Missouri Supreme Court

217 S.W.2d 482

358 Mo. 782

Jean M. Hines, Appellant, v. The Western Union Telegraph Company, a Corporation, and City of Joplin, a Municipal Corporation, Respondents

No. 40648

Supreme Court of Missouri

January 7, 1949

Rehearing Denied February 14, 1949.

Appeal from Jasper Circuit Court; Hon. Walter E. Bailey Judge.

Affirmed as to defendant city of Joplin and reversed and remanded as to defendant Western Union Telegraph Company.

Norman Foulke & Warten for appellant.

(1) The trial court erred in sustaining defendant Western Union's motion for a directed verdict and in directing the jury to return a verdict in favor of the defendant Western Union. The defendant Western Union, having the ownership, control and maintenance of the manhole so set in Fifth Street had the duty to exercise due care in maintaining it in a reasonably safe condition for travelers such as the plaintiff. Berry v. Emery, Bird, Thayer Dry Goods Co., 211 S.W.2d 35. (2) The "due care" imposed upon the defendant Western Union, since it made an extraordinary use of the street for its own convenience in owning, controlling and maintaining a manhole therein, was the highest degree of vigilance and care to keep the manhole in a safe condition for the public. Hoffman v. Western Union Telegraph Co., 43 S.W.2d 903; Merrill v. St. Louis, 83 Mo. 244; Cool v Rohrbach, 21 S.W.2d 919. (3) Where, as here, the defendant Western Union owned, controlled and maintained the manhole in the city street which caused an artificial accumulation and discharge of water upon the public sidewalk, which by freezing made the use of the sidewalk dangerous, it was guilty of negligence and will be held liable for injuries resulting therefrom. Stith v. J.J. Newberry Co., 336 Mo. 467, 71 S.W.2d 447; Waltemeyer v. Kansas City, 71 Mo.App. 354; Hilliard v. Noe, 198 S.W. 435; Oettel v. J.A. Schaefer Const. Co., 51 S.W.2d 870. (4) The trial court committed reversible error in admitting in evidence, over the plaintiff's objection, the testimony of witnesses in behalf of the defendants tending to show that the water which had accumulated in the manhole and overflowed upon the cross walk and there freezing, had come from a leaky fire plug whose condition was due either to the negligence of a city employee in failing to tighten the valves properly after use or to the negligence of a third party, the Joplin Water Works Company, in failing to maintain and service the fire plug. The admission of this evidence on an issue not raised by the pleadings constitutes reversible error, as the evidence offered at the trial must be applicable to the issues made by the pleadings. Brooks v. Blackwell, 76 Mo. 309; Greene v. Gallagher, 35 Mo. 226; Wilcox v. Kansas City Western Ry. Co., 201 Mo.App. 510, 213 S.W. 156. (5) The defendants were not entitled to rely on an alleged defense which was not contained in their answers; nor could they establish by evidence a defense not pleaded. Strauss v. Zollman, 348 Mo. 337, 153 S.W.2d 65; Lynch v. Morrow's Admr., 28 Mo. 357; Cowden v. Cairns, 28 Mo. 471; Currier v. Lowe, 32 Mo. 203. (6) Evidence that the origin of the water which accumulated in the manhole and overflowed therefrom may have been due to the negligent act of some person other than the defendants would not relieve either of them of liability; hence the failure to exclude such evidence was error. Cuddy v. Shell Petroleum Co., 127 S.W.2d 24. (7) The trial court committed reversible error in giving Instruction D-1 at the instance of the defendant City of Joplin because the instruction was an abstract statement of law, broader than the issues, misleading and therefore prejudicial. Bonine v. City of Richmond, 75 Mo. 437; Schipper v. Brashear Truck Co., 132 S.W.2d 993, 125 A.L.R. 674; Gillioz v. State Highway Comm., 348 Mo. 211, 153 S.W.2d 18; Stanich v. Western Union Tel. Co., 348 Mo. 188, 153 S.W.2d 54; Dove v. Atchison, T. & S.F. Ry. Co., 349 Mo. 798, 163 S.W.2d 548. (8) The trial court committed reversible error in giving Instruction D-9 at the instance of the defendant City of Joplin because the instruction singled out and commented unduly on the evidence. It called the jury's attention to a matter outside the issues and was so misleading in its terms as to amount to a directed verdict for the defendant City of Joplin. Degonia v. St. Louis, I.M. & S. Ry. Co., 224 Mo. 564, 123 S.W. 807; Dehn v. Thompson, 181 S.W.2d 171; Holinghausen v. Ade, 233 S.W. 39; Martin v. Travelers Ins. Co., 247 S.W. 1024.

Scott, Scott & Blair for respondent The Western Union Telegraph Co.

(1) Where there was no evidence in the case that the water got onto the crosswalk because of negligence of the Western Union, but got there because of negligence of a user of a city fire hydrant in failing to completely turn off the water therefrom, over which hydrant and user the Western Union had no control, and where the undisputed evidence showed that absent the negligence of the user of the fire hydrant appellant's injury would not have occurred, such negligence was the proximate cause of appellant's injury. Rose v. Thompson, 141 S.W.2d 824, 346 Mo. 395. Coble v. St. Louis-S.F. Ry. Co., 38 S.W.2d 1031; Scott v. Shepherd, 3 Wils. 403, S.C. 2 W. Bl. 892; 1 Cooley on Torts (3rd Ed.), p. 104. (2) It is not negligence not to take precautionary measures to prevent an injury which, if taken, would have prevented it, when the injury could not reasonably have been anticipated and would not, unless under exceptional circumstances, have happened. Mann v. Pulliam, 127 S.W.2d 426, 344 Mo. 543. American Brewing Assn. v. Talbot, 141 Mo. 674, 42 S.W. 679, 682; Urie v. Thompson, 176 S.W.2d 471, 352 Mo. 211; McCord Rubber Co. v. St. Joseph Water Co., 181 Mo. 678, 81 S.W. 189. (3) Due care does not require one to search for or guard against an occurrence which a reasonably prudent person would not anticipate under the circumstances as they existed before the accident. Jones v. San Francisco Ry. Co., 63 S.W.2d 94. (4) That which never happened before and which, in its character is such as not to naturally occur to prudent men to guard against it happening at all, cannot when in the course of years it does happen, furnish good ground for a charge of negligence in not foreseeing its possible happening and guarding against that remote contingency. Holt v. Southwest Missouri Electric Ry. Co., 84 Mo.App. 443; Hysell v. Swift & Co., 78 Mo.App. 39; Hubbell v. Yonkers, 104 N.Y. 434, 10 N.E. 858; Jogsen v. Hall, 53 Mich. 274; Nelson v. Railroad, 30 Minn. 74. (5) Actual notice of such condition is prerequisite to finding the Western Union was negligent in not foreseeing such exceptional occurrence and in not keeping a look-out or making an inspection to discover such an occurrence when it happened. A. J. Brown & Son v. City of Grand Rapids, 251 N.W. 561. (6) The doctrine of res ipsa loquitur is not applicable to this case. Even if this were a case to which, under proper pleadings, the doctrine would apply, where the plaintiff bases her petition upon and alleges only specific acts of negligence, the law places the burden of proving such specific negligence upon the plaintiff, and recovery, if had at all, must be upon the specific negligence pleaded. McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Pate v. Dumbauld, 250 S.W. 49, 298 Mo. 435. (7) While an occupier of a portion of a street is not an abutting property owner, yet where, as in this case, the defect (water on the crosswalk) was not caused by the occupier of a portion of a street, the principle of law announced in the abutting owner cases, to the effect that the neglect of an abutting owner to keep a sidewalk in repair and to keep it free from snow and ice does not render him liable to a party injured, unless such owner himself caused the defect, is applicable to such occupier of a portion of a street. Lucas v. St. Louis & Suburban Ry. Co., 174 Mo. 270, 73 S.W. 589. (8) As the basis and reason for the non-liability rule of law in abutting property owner cases is the fact that the abutting owner did not cause the defect and had no control over the cause thereof, the non-liability rule of law of abutting property owner cases is applicable to the Western Union on the facts of this case. Tower v. St. Louis, 148 S.W.2d 100, 235 Mo.App. 1026; Riley v. Woolf Bros., Inc., 159 S.W.2d 324, 236 Mo.App. 661; Livingston v. St. Joseph, 174 Mo.App. 636, 161 S.W. 304. (9) Western Union cannot be held liable as for continuing a nuisance created by another over whom Western Union had no control, because the continuer of a nuisance is liable therefor only after notice and a request to remove it has been given, and the continuer thereafter fails to remove it within a reasonable time. Neither pleading nor proof in this case supports such a theory. Rychlicki v. St. Louis, 115 Mo. 662, 22 S.W. 908; Schindler v. Standard Oil Co. of Indiana, 232 S.W. 735, 207 Mo.App. 190. (10) Even a person collecting upon his land a quantity of water is not responsible for damage resulting to another person for the breaking loose of such water in consequence of the act of a third person over whom the landowner collecting the water has no control. 1 Thompson's Commentaries on the Law of Negligence, sec. 701, pp. 640, 641; Box v. Jubb, 4 Ex. Div. 76, S.Ct. 27 Week. Rep. 415, 8 Cent. L.J. 289. (11) Evidence that negligence of a third person was the proximate cause of appellant's injury although such is the only evidence in the case upon the subject of proximate cause, is admissible under Western Union's denial in its answer of the charges of negligence and proximate cause contained in appellant's petition. Hornsby v. Fisher, 85 S.W.2d 589; Bragg v. Metropolitan St. Ry. Co., 192 Mo. 331, 91 S.W. 527; Connole v. Illinois Cent. R. Co., 21 S.W.2d 907; Young v. The City of...