Kaiser v. City of St. Louis

• Decision Date: 23 November 1904
• Parties: KAISER v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

84 S.W. 19

185 Mo. 366

KAISER v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

November 23, 1904.

GRADE OF STREETS — NEGLIGENCE — OVERTURNING OF WAGON.

1. Where there is a space of 12½ feet between a street car track and the outer edge of the gutter at the side of a street, and the cross-grade for the 10 feet next to the track is only 40/100 of a foot, and that for the remaining 2½ feet is 80/100 of a foot, such cross-grade is not a dangerous condition, making it unsafe for a wagon to be driven along it, and so making the city negligent in not remedying it, and therefore liable for injury from the tipping over of plaintiff's wagon while driving outside a team between it and the car track.

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

Action by Frederick W. Kaiser against the city of St. Louis. Judgment for plaintiff. Defendant appeals. Reversed.

Chas. W. Bates and Benj. H. Charles, for appellant. Henry H. Oberschelp, for respondent.

MARSHALL, J.

This is an action for damages for personal injuries sustained by the plaintiff, on February 23, 1900, at about 11 o'clock a. m., caused by the turning over of a milk wagon that he was driving along the north side of Chouteau avenue, in front of No. 2775 Chouteau avenue. The plaintiff recovered a judgment for $2,000, and the defendant appealed.

The negligence charged in the petition is that the city "raised or caused to be raised the middle portion of said Chouteau avenue at said place, so that said middle portion was much higher than said portion in and along the said gutter at said place, and defendant, by its proper officers and agents, long prior to said February 23, 1900, until and for some time after said date, permitted and allowed to remain a steep decline in said street at said place, beginning near the said middle portion, and running toward and into said gutter, and said deep depression and said deep decline were dangerous to vehicles passing along said open road," and that the city was negligent in not remedying the said condition after it knew, or by the exercise of ordinary care could have known, thereof. The answer is a general denial and a plea of contributory negligence. The facts in judgment are these:

Chouteau avenue runs east and west, is a very broad street, and has a double street car track in the center thereof. It is one of the most extensively traveled streets in that part of the city. For many years it has been an improved, macadamized street, with stone gutters on the sides. At the place of the accident the land slopes sharply from both north and south toward the street. In consequence thereof, when it rains, the water naturally flows toward that part where the accident occurred. To carry off the surface waters rapidly, and to prevent their running into the cellars of the houses abutting the street, there are gutters, 2 feet wide. From the north rail of the north car track to the outer edge of the gutter it is 12½ feet. Beginning at the said north rail of the north car track, the street declines toward the gutter 25/100 of a foot in the first 5 feet and 15/100 of a foot in the next 5 feet. At a point 10 feet north of the car track the street declines 1 43/100 feet in 4½ feet, the lowest point being the bottom of the gutter; and from the bottom to the top of the gutter there is an incline of 1 37/100 feet in 1 foot, thus forming the curbstone. At a point 37 feet west of the place of accident there is a sewer inlet, and at that point the decline from the car track to the bottom of the gutter is more gradual, and not even as much or as sharp at the gutter as it is at the place of the accident. The construction of the street and the gutter is substantially the same as on other streets of like character.

The plaintiff had been a driver of various kinds of delivery wagons in the city for nearly 20 years before the accident. For a period ranging from 10 days to 3 or 4 weeks, according to the testimony of the various witnesses, immediately preceding the accident, he had been driving a milk wagon for the Union Dairy Company, and had driven the wagon every day over the street at and near the place of the accident, delivering milk, particularly at No. 2771 Chouteau avenue, which was a few feet east of the place of accident. Usually he drove from the east to the west, on the north side of the street; but on the day of the accident he reversed his course, and about 11 o'clock a. m. was driving from the west toward the east, on the north side of the street. When about 100 feet west of the place of the accident, he met a street car and a wagon coming west "side by side." The wagon was on the north side of the street, and between the car and the...