Hunt v. City of St. Louis

• Decision Date: 19 May 1919
• Citation: 211 S.W. 673,278 Mo. 213
• Parties: WALTER L. HUNT, Appellant, v. CITY OF ST. LOUIS, AQUA CONTRACTING COMPANY and G. A. HEMAN, Appellant
• Court: Missouri Supreme Court

211 S.W. 673

278 Mo. 213

WALTER L. HUNT, Appellant, v. CITY OF ST. LOUIS, AQUA CONTRACTING COMPANY and G. A. HEMAN, Appellant

Supreme Court of Missouri, Second Division

May 19, 1919

Appeal from St. Louis City Circuit Court. -- Hon. William L. Kinsey Judge.

Affirmed in part; reversed and remanded in part.

S. C Rogers for appellant Walter L. Hunt.

(1) The court erred in admitting in evidence over the objection of this appellant the photographs of the locality in question taken a year after the accident. Riggs v. Railroad, 216 Mo. 326. (2) The court erred in giving instructions numbered five, six, seven, eight, nine, ten and twelve, and each of them, at the request of the respondent city over the objection of appellant. (a) Instruction five attempts to state an abstract proposition of law as to the duty of the city in keeping its streets reasonably safe for travel in the ordinary mode and instructs the jury to find for the city if an ordinary prudent man would have anticipated danger therefrom, omitting the fact Hunt did not see it, or know it was dangerous. It is an incorrect statement of the law and should not have been given. Mehan v. City of St Louis, 217 Mo. 35; Welsh v. City of St. Louis, 73 Mo. 74; Schlinski v. St. Joseph, 170 Mo.App. 387; Burton v. Kansas City, 181 Mo.App. 427; Vance v. Kansas City, 123 Mo.App. 644. (b) Instruction number six assumes that the horse was running away, which was a controverted fact, and should not have been given. Quinn v. Van Raalte, 205 S.W. 68; McNiell v. City of Cape Girardeau, 190 S.W. 327; Clark v. St. Joseph Railroad Co., 242 Mo. 570; Moon v. Transit Co., 247 Mo. 227; Townsend v. City of Joplin, 139 Mo.App. 399; Harrison v. Kansas City Electric Light Co., 195 Mo. 623; Brennan v. City of St. Louis, 92 Mo. 486; Knights v. Kanerred in giving instruction number eight. It told the sas City, 138 Mo.App. 153. (c) Instruction number seven, to the effect the city was not liable for failure to enforce its ordinances, should not have been given. Robison v. Kansas City, 181 S.W. 1004. (d) The court jury one should not run into dangerous obstructions readily visible which ought to be seen; that one did not have to have actual knowledge, as it could be imputed to him; and that even if Hunt did not see the macadam, yet if he should have seen and should have avoided it, they must find for the city, omitting the knowledge that it was dangerous amongst its many other patent errors. Coffey v. City of Carthage, 186 Mo. 573; Heberling v. Warrensburg, 204 Mo. 604. (e) The court erred in giving instruction number nine. It told the jury that if the light, where the macadam was placed, was such that the macadam could easily be seen so it could easily be avoided and that ordinary prudence did not require a light, they should find for both defendants. Burton v. Kansas City, 181 Mo.App. 427. (f) The court erred in giving instruction number ten. This is the old and often condemned mishap or mischance accident instruction. Beauvais v. St. Louis, 169 Mo. 506. (g) The court erred in giving instruction number twelve. This instruction told the jury the contractors could obstruct the streets as may be reasonably necessary, and if they so piled material on Twenty-Second Street, leaving a clear space for passage of vehicles, which was not permitted to remain longer than necessary, then it was not a wrongful nor unlawful obstruction. Amongst other vices, it omitted the question of dangerous piling. The question of wrongful or unlawful piling was not at issue; the question was of dangerous piling and efforts to protect and render less dangerous.

Charles H. Daues and Everett Paul Griffin for respondent City of St. Louis.

(1) It is proper, and usually very desirable for the information and instruction of the court and jury, to introduce in evidence photographs, even though taken a considerable time after the accident, showing the general appearance of the scene where the accident happened, and even though the conditions existing may be a little different from the conditions which existed at the very time of the accident. Davidson v. Frisco Railroad, 164 Mo.App. 701; Lauff v. Kennard & Sons Carpet Co., 186 Mo.App. 123. (2) Instruction five correctly states the law with regard to the duty of the city in the care of its streets. 4 Dillon on Municipal Corporations (5 Ed.), sec. 1711; 6 McQuillin on Municipal Corporations, sec. 2726; Ryan v. Kansas City, 232 Mo. 471; Wheat v. St. Louis, 179 Mo. 572; Woodson v. Metropolitan Street Ry. Co., 224 Mo. 685. (3) Instruction six does not assume that the horse was running away. (4) Instruction seven is a correct statement of the law, as the city is not liable for the violation of its ordinances nor for failure to enforce said ordinances. Salmon v. Kansas City, 24 Mo. 14; Ryan v. Kansas City, 232 Mo. 483; Mehan v. St. Louis, 217 Mo. 35; Loth v. Columbia Theatre Co., 197 Mo. 358; Sallee v. St. Louis, 152 Mo. 621; Harmon v. St. Louis, 137 Mo. 499; Butz v. Kavanaugh, 137 Mo. 510. (5) Instruction nine was a correct statement of the law in this case, as it submitted to the jury as a question of fact whether there was sufficient light for the pile of macadam to be seen without the additional use of a red light. This was a question for the jury and properly submitted to the jury, because it there was sufficient light for the plaintiff to have easily seen the pile of macadam so as to have easily avoided the same had he used ordinary care, then the city and the other defendants were not liable. (6) This was a proper case for giving the instruction to the effect that if the accident occurred through mischance or accident, there could be no liability against the city. (7) Instruction twelve correctly stated the law, for if the city and its contractors were not permitted to pile material on the street for the purpose of reconstructing the same, then it would be practically impossible to reconstruct any streets. (8) The court should have sustained the instruction in the nature of a demurrer to plaintiff's evidence offered at the close of plaintiff's case, for the reason that the evidence in the case shows that plaintiff failed to comply with Laws 1913, p. 545, requiring that in personal injury suits against the city for injuries occurring on the streets and highways a notice in writing shall be served upon the mayor within ninety days after the accident, stating the time, place and circumstances of the injury. This the plaintiff failed to do. The statute in this regard is peremptory. Hackenyos v. St. Louis, 203 S.W. 986; Touhey v Decatur, 175 Ind. 98.

J. P. McCammon for respondent-appellant G. A. Heman.

(1) Instruction 1a asked by this appellant should have been given. McPheeters v. City, 92 N.Y.S. 79; Jackson v. Kansas City, 106 Mo.App. 52; Parker v. Cohoes, 10 Hun, 531; Doherty v. Waltham, 4 Gray, 596; Walsh v. Lansing, 70 N.W. 129. Certainly, having placed lights where defendant was piling macadam on the street, he could not presume there was danger of their removal or extinguishment, nor could he be held for the wrongs of others in removing or extinguishing them, and in view of the positive and uncontradicted evidence of their being in place before plaintiff's injury, the question was one to be submitted to the jury. Since this was the only instruction referring to this phase of the case, its refusal was plainly error. (2) Defendant Heman pleaded contributory negligence of plaintiff in driving his horse at a dangerous rate of speed, and in failing to check or control his horse, and stop his horse when the arc light showed that part of the street where he drove his horse was occupied by the material which overturned his wagon. There was direct, positive evidence of contributory negligence, proper and material under the issues.

OPINION

FARIS, J.

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 $ 7500. 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 3rd 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 farther 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...