Law v. City of St. Louis

• Decision Date: 14 March 1922
• Docket Number: No. 22747.,22747.
• Citation: 292 Mo. 384,239 S.W. 124
• Parties: LAW v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

239 S.W. 124

292 Mo. 384

LAW v. CITY OF ST. LOUIS et al.

No. 22747.

Supreme Court of Missouri, Division No. 1.

March 14, 1922.

Appeal from. St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by John N. Law against the City of St. Louis and United Railways Company of St. Louis. There was a verdict and judgment in favor of defendant city and against defendant Railway Company, and the City appeals from an order granting plaintiff a new trial. Affirmed.

Henry S. Caulfield, George F. Raid, and A. H. Bader, all of St. Louis, for appellant.

Frank X. Hiemenz, of St. Louis, for respondent.

RAGLAND, C.

This is a suit for personal injuries alleged to have been caused by the negligent failure to repair and maintain in a reasonably safe condition one of the defendant city's paved streets.

Plaintiff's evidence, in its aspect most favorable to his contentions, tended to show the following state of facts: Finney avenue, at the time of the casualty presently to be described, was a public thoroughfare running in an easterly and westerly direction in the city of St. Louis. It was intersected by Vandeventer avenue, which runs north and south, and again, just a block west, by Sarah street. Finney avenue between the intersections just mentioned was 42 feet in width from curb to curb, and was occupied by two parallel street railroad tracks, over which the defendant United. Railways Company ran its electric cars; the north track was used for west-bound, cars and the south track for those going east. The distance between the north rail and the north curb of the street was about 14 feet. The center of the street occupied by the railroad tracks was paved with granite blocks. This strip of granite paving extended out beyond the north track a distance of 12 inches. The remainder of the street was paved with macadam. The tops of the rails were approximately an inch above the surface of the street. In the north rail of the track used for west-bound cars, at a point nearly opposite the premises known as 3955 Finney avenue, there was a low joint. Some of the material upon which the rails were laid had worked out at that point, and the loose joint moved up and down as cars passed over it, causing further disintegration of the paving. Along the north side of the rail adjacent to the low joint there was a rut or depression. This depression was above 5 feet long. It was widest and deepest at the joint; there it was 5 inches wide at the top and 3½ inches deep next to the rail. From thence it tapered toward each end. The north side of the rut sloped from the surface of the street down to the bottom of the rail. The wheels of a vehicle in passing over the depression would slide down against the rail, along the outer side of which at the top there was a flange. On approaching the depression it could be seen from a distance of from 35 to 50 feet.

On November 20, 1918, plaintiff, who was about 20 years of age and an experienced chauffeur, was driving an automobile delivery wagon west on the north side of Finney avenue between Vandeventer avenue and Sarah street. After he crossed over Vandeventer avenue there was a street car about 50 feet ahead of him, proceeding in the same direction. He was driving along next to the track at the rate of about 10 miles an hour, watching the car and the street in front of him. There was nothing else to attract his attention, and nothing to obstruct his view. He apparently did not see the rut or depression heretofore described; if he did see it, he paid no attention to it. When his vehicle reached that point the left front wheel sank and caught momentarily, then the front end of the car tilted up, the steering wheel veered around suddenly, the car crossed the track toward the south, turned completely around, and then over on its side, catching one of plaintiff's legs between the running board and pavement. His injuries were "severe. The brakes and appliances on the automobile were in good condition, and, had plaintiff so desired, he could have stopped within a space of 3 feet.

The rut or depression had existed some two or three months prior to the accident. One of the city's inspectors had reported to the street commissioner that the condition of the street in that immediate vicinity was dangerous, and on November 12th the latter had signed an official notice to the defendant. United Railways Company, calling its attention to such condition, and directing it to make repairs.

An ordinance of the city of St. Louis required all street railway companies to keep in repair street pavements covering the space between the rails of their tracks and the space between the tracks where there was a double track or more, and 12 inches outside of each outside rail. On February 5, 1919, plaintiff gave to the mayor of the defendant city notice in writing of his injuries and the...