Jordan v. City of Hannibal

• Decision Date: 31 October 1885
• Citation: 87 Mo. 673
• Parties: JORDAN et al. v. THE CITY OF HANNIBAL, Appellant.
• Court: Missouri Supreme Court

87 Mo. 673

JORDAN et al.

v.THE CITY OF HANNIBAL, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Hannibal Court of Common Pleas.--HON. JOHN T. REDD, Judge.

AFFIRMED.

W. C. Foreman and Easley & Russell for appellant.

(1) The petition does not state facts sufficient to constitute a cause of action. (2) The city could not be held liable for any defect in the plan of the bridge. Detroit v. Beckman, 34 Mich. 125; Foster v. St. Louis, 71 Mo. 157; Carr v. Northern Liberties, 35 Pa. 324. (3) Where a casus, or “an act of God,” is pleaded as a special defence, then if prior negligence is relied on to defeat the plea, it must be specially pleaded and proven, and such prior negligence is not available as an avoidance unless it is shown that it was not merely a condition, but was an active and co-operative cause of the accident. Wharton on Neg., sec. 123; Read v. Ry., 60 Mo. 206; Ry. v. Read, 10 Wall. 176; Pruit v. Ry., 62 Mo. 527. (4) The negligence of the respondent, in driving on the bridge in a trot, should have been submitted to the jury. Dillon on Mun. Corp. (3 Ed.) sec. 1020. (5) The appellant could only be required to keep its bridges reasonably safe for travel in the ordinary modes, and able to resist storms of ordinary and usual volume.

T. H. Bacon for respondent.

(1) The petition sufficiently stated a cause of action. Haire v. Kansas, 76 Mo. 438. (2) The defendant's refused instructions were properly refused. A rain, however sudden or unusual, cannot necessarily account for a practically antecedent calamity. The instructions given on both sides by the court demanded of plaintiffs more proof than the case required, as thereby the plaintiffs were held to prove the ordinary character of the storm as well as of the current. Houxv. Batteen, 68 Mo. 84. The rain that caused the bridge to fall, though extraordinary in force and violence, might not have lasted long enough to make a current of extraordinary force.

BLACK, J.

This is an action to recover damages for the loss of plaintiff's horse, buggy and harness, occasioned, it is alleged, by a defective bridge. The answer admits the ownership of the property and the loss at the time stated in the petition. It also states that the loss was occasioned by the act of God, to-wit, an extraordinary rain storm, and it also sets up contributory negligence on the part of Crosby. The bridge was a wooden structure, with mud sills and upright posts. The evidence tends to show that the bridge had been for a long time out of repair, and was in a dangerous and unsafe condition. Other evidence is to the effect that it had been repaired just before the accident. Crosby and his wife were in the carriage and attempted to cross, when the bridge fell, and the property was lost. The evidence was conflicting as to the character of the storm.

1. It was the duty of the defendant to keep the bridge in a reasonably safe condition for travel thereon. If it became out of repair, notice of that fact should be brought home to the defendant, or the defect must be shown to have existed for such a length of time that the defendant, by the use of ordinary care, would have discovered the same in time to have made the needed repairs. These principles are fairly incorporated in the instructions given. Others given are in effect that if the bridge fell because of a rain storm of extraordinary force and violence, when it was in a condition to resist an ordinary storm, then plaintiff could not recover. It is true the second instruction assumes that the bridge fell because of a storm. This is the position taken by the answer, save it goes further and states that the storm was one of extraordinary force and violence. The effect of the instruction, therefore, was to narrow the issues in favor of the defendant, and of that it surely cannot complain.

2. The court, of its own motion, gave an instruction stating that it was the duty of the defendant, in adopting a plan for a bridge, to consider the nature and condition of the materials composing the bed and banks of the stream, and the force of the current arising in said stream from ordinary storms, and if the bridge was built upon a plan that necessarily rendered travel over it dangerous in the usual modes of travel, during a rain storm of ordinary force and violence, and that the loss was caused by such defect in the plan of the bridge, then the...