Hunt v. City of St. Louis
| Citation | 211 S.W. 673,278 Mo. 213 |
| Decision Date | 28 March 1919 |
| Docket Number | No. 19770.,No. 19773.,19770.,19773. |
| Parties | HUNT v. CITY OF ST. LOUIS et al. |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis Circuit Court; William L. Kinsey, Judge.
Action by Walter L. Hunt against City of St. Louis, Aqua Contracting Company, and G. A. Heman. From judgment for first two named defendants plaintiff appeals, and from judgment for plaintiff against last-named defendant that defendant appeals. Affirmed as to defendants Heman and Aqua Contracting Company, and reversed and remanded as to defendant City of St. Louis.
This is an action brought by plaintiff against defendants for personal injuries accruing to him, as he avers, from the negligence of defendants. Upon the trial below defendant Aqua Contracting company was held not liable upon a directed verdict, and the city of St. Louis pursuant to the jury's verdict, while the verdict and judgment went against defendant Heman for the sum of $7.500. From the above verdicts and the judgments rendered thereon the plaintiff appeals as against defendants city of St. Louis and Aqua Contracting Company, while defendant Heman appeals from the judgment rendered against him and in favor of plaintiff. Pursuant to stipulation an order was made by us consolidating these cross-appeals, and the case is before us for decision upon all three of the questions presented.
The facts of the casualty for which plaintiff sues are fairly simple, and so many of these facts as are necessary to an understanding of the questions presented upon the appeals run substantially thus: On a day prior to the 3d day of January, 1914, defendant city of St. Louis had entered into a written contract with defendant Aqua Contracting Company for the repair of that portion of Biddle street extending from Fourteenth street to Jefferson avenue by taking up and removing the old pavement and curbing thereon and, putting in place and completing a new pavement and curbing. After executing this contract with the city of St. Louis, defendant Aqua Contracting Company duly executed a bond to the city of St. Louis conditioned upon the faithful and proper performance thereof. Thereafter the Aqua Contracting Company (hereinafter for brevity called simply the Company) had nothing further to do with the performance of the contract or the making of the repairs upon this street, but permitted defendant Heman to do this work in his own way and for his own profit. When the tax bills were made out to the Company the latter delivered them to defendant Heman, who in turn assigned them to one Ruckert, who furnished Heman with money with which to finance and carry out this contract.
On the evening of January 3, 1914, about 7 or 8 o'clock, plaintiff, driving a single horse hitched to a delivery wagon of the Famous-Barr Company, for which he was a driver, was coming south along Twenty-Second street approaching Biddle street at the point where defendant Heman was then engaged in rebuilding the street. On Twenty-Second street, at a point near to or adjoining Biddle street, defendant Heman had deposited, for his convenience in the repair work, a large quantity of rock for the making of macadam. This rock was so piled and of such dimensions that it extended from a point quite near the north side of Biddle street to a point near the alley north of Biddle street, a distance of some 75 feet or more. Eastwardly this pile of material extended from the west curbing of Twenty-Second street to a point at or near the center thereof. On the east side of Twenty-Second street a large pile of sand had been deposited. The effect of the piling upon this street, at the point stated, of the sand and the rock, was to obstruct and narrow the passageway on the street, so that at the time plaintiff came south on this street the passageway for vehicles between the sand and the rock was only from five to eight feet wide. Moreover, at the same time a brewer's wagon, drawn by a team of two mules, was coming north in this narrowed and obstructed passageway.
Plaintiff was driving in a fast trot, according to his own testimony and that adduced in his behalf. While so using this street, and as he approached Biddle street from the north, the horse which he was driving ran the delivery wagon against the pile of rock, turned the wagon over, threw plaintiff out on the ground, and, becoming frightened, dragged plaintiff a distance of some 75 feet. The result was that the bones in plaintiff's left foot and ankle were seriously crushed and broken, and he was otherwise hurt and bruised. His injuries were serious, and as a result thereof he was for a long time unable to walk, was put to much expense for medical service, and is without question lamed and permanently hurt. No question is made as to the extent of his injuries, however, nor is the amount of the verdict objected to on account of its alleged excessiveness.
Plaintiff's cause of action is, as to the city of St. Louis, bottomed upon the alleged negligence of the latter in failing to keep and maintain its public streets and highways free from nuisances and dangerous obstructions and in a reasonably safe condition for persons and vehicles traveling thereon lawfully. The cause of action against defendant Heman and defendant Company is bottomed upon the fact that they were, as plaintiff avers in his petition, together engaged in doing the work of repair on Biddle street, and were negligent in piling in Twenty-Second street large quantities of macadam, sand, and other material used in, and necessary to be used in, the reconstruction of Biddle street, and, having so obstructed the street, they failed and neglected to observe a certain ordinance of the city of St. Louis which requires the placing of warning red lights on building material when the latter is so placed as to constitute an obstruction in the public streets. The above ordinance, so relied on by plaintiff requires that if the obstruction on which a red light is required to be placed is not more than 10 feet in length, then a single light is sufficient; but if the same is over 10 feet and less than 50 feet long, two red lights are required, one at each end, and an additional red light is required for every additional 50 feet or part thereof in length of the obstruction.
On the part of plaintiff the evidence tended to show that there were at the time of the happening to him of the casualty complained of no red light, or lights whatever, on either the macadam or on the sand. The evidence on the part of defendants tended to show that one red light had been placed by the watchman of defendant Heman on the north end of the pile of macadam, and that this red light (as a number of witnesses testified) was on this macadam at the instant plaintiff was hurt. It was contended furthermore by defendants that there was no necessity for a red light on the south end of the pile of macadam, or upon any other part thereof, since certain street lights on Biddle street so lighted up this building material as to make it easily and readily visible.
The testimony on the part of defendants further tended to show that the horse which plaintiff was driving was, at and just prior to the instant of the casualty, beyond control and running away. This fact was denied by plaintiff as well as by certain witnesses whom he offered. There was evidence pro and con, and the matter, therefore, became a question for the jury.
It is contended by plaintiff on his appeal (a) that the court erred in directing a verdict in favor of the Aqua Contracting Company, and (b) in admitting certain evidence, and in giving certain instructions which resulted in the verdict in favor of defendant city of St. Louis. It is contended by defendant Reman that the court erred in refusing to give certain instructions which were offered by him, and that the verdict against him was induced by these errors. As stated, the two appeals which were originally taken in this case, and which were consolidated upon our order pursuant to stipulation, and the whole case with all the points above involved, are now before us for determination in a single opinion. Such other facts as may be necessary to make clear the many points which the nature of the case requires to be discussed will be set forth in that discussion.
J. P. McCammon, of Springfield, for appellant Heman.
Charles H. Dames and Everett Paul Griffin, both of St. Louis, for respondent City of St. Louis.
FARIS, J. (after stating the facts as above).
I. On the threshold we are met by the contention of defendant city of St. Louis that regardless of any errors, if such there be, the verdict of the jury as to it should be upheld, since as to it the court erred in refusing to sustain the demurrer to the evidence offered at the close of the case.
This contention is bottomed upon the alleged fact that no notice in writing was given by plaintiff to the mayor of defendant city, within 90 days after his injury, of the time, place, circumstances, and character of such injury to plaintiff, and of the fact that plaintiff would claim damages therefor, as the statute requires. Laws 1913, p. 545.
While no notice, as such, was given to the mayor, the original petition in this case was filed and summons therein, with a true copy of the petition attached, actually served on the mayor of defendant city in less than 90 days after the injury occurred. The allegations of the petition so filed and served upon the mayor were such as to comply substantially with the requirements of the statute invoked and above cited. The Kansas City Court of Appeals in a well-considered opinion held that where an action is commenced, and summons, accompanied by a copy of the petition, is served on the mayor within 90 days after the injury complained of is received, no other or further notice is required. Morrill v, Kansas City, 179 S. W. 759. The correctness of this ruling impresses us, especially where, as here, the contents of the petition are...
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