Kassmann v. City of St. Louis

• Decision Date: 23 December 1899
• Citation: 153 Mo. 293,54 S.W. 513
• Parties: KASSMANN v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

54 S.W. 513

153 Mo. 293

KASSMANN v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 2.

December 23, 1899.

MUNICIPAL CORPORATIONS — NEGLIGENCE — DEFECTIVE STREETS — INSTRUCTIONS.

1. When a city opens a street, in whole or in part, for public travel, it must keep such street, or part thereof, in its entirety, in a condition reasonably safe for travel.

2. In an action for personal injuries resulting from a defective highway, an instruction to the effect that, if the dangerous condition of the street was known to plaintiff, and he could have avoided the danger by passing around it, or taking the other side of the road, and he did not so avoid it, he could not recover, is erroneous, since it wholly omits the question of plaintiff's exercise of reasonable care in undertaking to cross the hole or depression constituting the danger.

3. Instructions should be made applicable to the evidence, and a charge as to plaintiff's knowledge of a defect in a street, causing his injury, which is not supported by the evidence, is erroneous.

Appeal from St. Louis circuit court; Leroy B. Valliant, Judge.

Action by Charles Kassmann against the city of St. Louis. From an order setting aside a verdict for defendant, and granting a new trial, defendant appeals. Affirmed.

An action for damages for personal injuries sustained by plaintiff, a teamster, was commenced against the city of St. Louis August 28, 1896. A trial resulted in a verdict for defendant in 1897, and the verdict was set aside by the circuit court, from which order granting a new trial defendant city appeals.

The petition states the plaintiff's case very concisely: "The plaintiff states that at the times herein mentioned the city of St. Louis was, and now is, a municipal corporation by virtue of the law of the state of Missouri; that at said time Grand avenue, at the places herein mentioned, was an open, public street within the city of St. Louis, graded and paved as such; that on the 17th day of August, 1896, the plaintiff was driving a wagon and team northward upon Grand avenue, and when at a point in said street just south of Grand Avenue Bridge his wagon and the wheels thereof came in contact with an obstruction in said street, to wit, a hole, ditch an excavation worn into said street, whereby the plaintiff was caused to be thrown from said wagon to the street, and said wagon and the wheels thereof ran against and upon the plaintiff, whereby plaintiff was greatly and permanently injured upon his head and body, two of his ribs were broken, his chest was crushed, his head was greatly lacerated, and plaintiff was otherwise greatly injured and bruised. And plaintiff avers that said street at said place was, by reason of said obstruction, out of repair, and in a dangerous and defective condition, as defendant, by its agents having charge of keeping said street in repair, well knew before plaintiff's said injuries, or would have known, by the exercise of ordinary care, in time to have repaired the same before plaintiff's said injuries, yet neglected to do so; that by reason of his injuries so sustained the plaintiff has suffered and will suffer great pain of body and mind, has been disabled from labor, and has lost and will lose the earnings thereof. His health and strength have been permanently impaired. He has incurred and will incur large expenses for medicines, medical attendance, and nursing, — to his damage in the sum of $10,000, for which sum he prays judgment." To this petition defendant filed the following answer: "Now comes the defendant in the above-entitled cause, and for answer to the petition of plaintiff filed herein denies each and every allegation in said petition contained. And for another and further answer to the petition of plaintiff the defendant avers that whatever injuries were received by plaintiff, if any injuries were received, were occasioned by the carelessness and negligence of plaintiff, which negligence and carelessness directly contributed to the happening of said injuries, and without which said injuries would not have occurred." The reply was general denial of new matter in the answer.

On the trial before the jury the evidence disclosed that Grand avenue is one of the public thoroughfares of St. Louis, and at the place where the accident to plaintiff occurred was an open public street, graded and paved for travel, from curb to curb, its entire width. The avenue was paved with macadam on its approach to a bridge which constitutes a part of said highway. On the east side of the street was a north-bound street-railway track; on the west side of the street a...