Lindman v. Altman

• Court: Missouri Supreme Court
• Writing for the Court: Ragland, J.
• Citation: Lindman v. Altman, 271 S.W. 512, 308 Mo. 187 (Mo. 1925)
• Decision Date: 13 April 1925
• Docket Number: 24004
• Parties: LIBA LINDMAN, Appellant, v. CLEM B. ALTMAN et al.; MARTIN J. CARROLL, Respondent

271 S.W. 512

308 Mo. 187

LIBA LINDMAN, Appellant, v. CLEM B. ALTMAN et al.; MARTIN J. CARROLL, Respondent

No. 24004

Supreme Court of Missouri

April 13, 1925

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Affirmed.

John I. Williamson, Sanford B. Ladd, Porter B. Godard Achtenberg & Rosenberg and John G. Park for plaintiff.

(1) The sidewalk was a safety zone for plaintiff. Defendants are liable to plaintiff for her injury, which was caused by its destruction. (a) The law keeps pace with modern conditions. Macomber v. Nichols, 34 Mich. 212; Towle v Morse, 103 Me. 250; People ex rel. v. Field, 266 Ill. 609. The automobile is a new and deadly peril. Berry on Automobiles (4 Ed.) Preface; Ex parte Kneedler, 243 Mo. 641; Meenach v. Crawford, 187 S.W. 883. (b) Sidewalks are safety zones for pedestrians. Tuttle v. Briscoe Mfg. Co., 190 Mich. 22, 30, 1 A. L. R. 842, note. They are for the exclusive use of pedestrians. Oliver v. City of Kansas, 69 Mo. 83; Benton v. Louis, 217 Mo. 705; Woodson v. St. Railway, 224 Mo. 699; 1 Elliott on Roads and Streets (3 Ed.) sec. 23; Huddy on Automobiles (7 Ed.) secs. 508 to 514. (c) City ordinances and the building permit prohibited excavations in the street, and required the preservation of the sidewalk or part of it. Ordinance 5763, sec. 581; Ordinance 5763, sec. 596. So, also, does the common law. Shafir v. Sieben, 233 S.W. 423. (2) The destruction of the sidewalk, the excavation of the sidewalk space, the failure of the defendants to provide a temporary way for pedestrians and Carroll's occupancy of an excessive portion of the roadway created a condition forbidden by law. His permit was invalidated, and he became liable as a trespasser. (a) The ordinance and building permit provisions must be construed more favorably to the public, and more strictly against Carroll. 3 Dillon on Mun. Corp. (5 Ed.) pp. 1782, 1783; 2 McQuillin on Mun. Corp. sec. 811; Turnpike Co. v. Illinois, 96 U.S. 67; Oreg. Ry. v. Oregonian Ry., 130 U.S. 26; Coosaw Min. Co. v. So. Co., 144 U.S. 550, 561; 36 Cyc. 1177; Stack v. Baking Co., 283 Mo. 396; Jersey City v. Railroad, 40 N.J.Eq. 417; Newark v. Railroad, 42 N.J.Eq. 196; Stormfeldt v. Turnpike Co., 13 Pa. St. 555; Com. v. Railroad, 27 Pa. St. 355. (b) Language identical to the permit has been construed to require immediate action by the person in possession of the property. 29 Cyc. 439; Willy v. Mullidy, 78 N.Y. 310, 34 Am. Rep. 536; McRieard v. Flint, 114 N.Y. 224; Adams v. Ayer, 192 Ill. 601, 614; Rose v. King, 49 Oh. St. 213, 15 L. R. A. 160. (c) It was the duty of the grantee of the permit to restore the highway to its prior condition. Moundsville v. Railroad, 37 W.Va. 92, 20 L. R. A. 161. (3) Since defendant Carroll failed to comply with the terms of his grant, he lost all his rights, and his occupancy of the street was wholly unlawful. 26 Am. & Eng. Ency. Law (2 Ed.) 691; Com. v. Railroad, 2 Gray (Mass.) 54; Com. v. Railway, 27 Pa. St. 339, 12 R. C. L. 173; 2 Elliott on Roads & Streets (3 Ed.) secs. 833, 834. (4) The excavation of the entire sidewalk space without permit, and Carroll's taking possession of that space without providing adequate ways for pedestrians, constituted a nuisance for which Carroll is liable. (a) The universal rule is that one who obstructs, maintains an obstruction or continues possession of an obstruction creates and continues a nuisance, for which he is liable to anyone specially injured thereby. 2 Shearm. & Redf. on Neg. (3 Ed.) sec. 365; 2 Elliott, Roads & Streets (3 Ed.) secs. 827, 833; 3 Dillon on Mun. Corp. (5 Ed.) secs. 1128, 1130, 1172, 1725; State ex rel. v. Powder Mfg. Co., 259 Mo. 254, 278. (b) Carroll became liable for such nuisance from the time of his taking possession. Grogan v. Foundry Co., 87 Mo. 321; Tate v. Railway, 64 Mo. 149; Dickson v. Railway, 71 Mo. 575; Pinney v. Berry, 61 Mo. 359; Silver v. Railway, 101 Mo. 91; Joyce on Nuisances, sec. 457. (5) The law of this case is Shafir v. Sieben, 233 S.W. 419. (a) These facts were adjudicated. State v. Evertz, 190 S.W. 288; State v. Baird, 195 S.W. 1013. (b) Where Court in Banc unholds a petition, such holding adjudicates those facts, if proven. Albers v. St. Louis, 233 S.W. 210, 211. (c) The circuit court judgment cannot be reversed because it followed the last authority. Booth v. Scott, 240 S.W. 218; State ex rel. v. Lamb, 232 S.W. 985; Coleman v. Ins. Co., 233 S.W. 188; State ex rel. v. Pub. Serv. Com., 275 Mo. 112; Bagnell Lbr. Co. v. Railroad, 250 Mo. 514, 520; Mahaney v. Railway, 254 S.W. 20; Frick v. Ins. Co., 233 S.W. 643; Lewis v. Barnes, 220 S.W. 487; McMenemy v. Kempelmann, 217 S.W. 99; Thompson v. Pennell, 199 S.W. 1011; Barrett v. Stoddard Co., 272 Mo. 129; Meyer v. Bobb, 184 Mo. 105. (6) Carroll had room on the site inside the property lines for the storage of building material. Additional expense incurred in complying with the law is no excuse for violating it. Natl. Waterworks Co. v. City of Kansas, 28 F. 921; C. B. & Q. R. Co. v. Illinois, 200 U.S. 561, 50 L.Ed. 596. (7) The right of the public was paramount to the right of Carroll. Shafir v. Sieben, 233 S.W. 423; 13 R. C. L. 214, 215. (8) The liability of Carroll to plaintiff does not depend upon her proving that the excess of the deposit of building material in the roadway caused the injury. Authorities under Point 3.

McCune, Caldwell & Downing for respondent.

(1) Ordinance 5763, sec. 596, has never been relied on as requiring the contractor to erect a temporary walkway. (2) Such claim has always been based on Ordinance 38919, sec. 217. (3) Ordinance 5763, sec. 596, does not amend or even refer to Ordinance 38919. They are and have always been treated by plaintiff as entirely independent. (4) Ordinance 5763 does not in fact require or refer to temporary walkway. (5) Ordinance 38919 did not under facts of the case require temporary walkway. (6) There was no room on lot to store building material, because the whole lot was excavated.

OPINION

Ragland, J.

This is an action for personal injuries caused, as it is alleged, by the concurring negligence of those who obstructed, and permitted to be obstructed, a public street in Kansas City and the driver of an automobile which ran against plaintiff while walking in such street.

The locus in quo was the south side of Fifteenth Street, which runs east and west, immediately east of Troost Avenue, which runs north and south. The width of Fifteenth Street from curb to curb was seventy-six feet; a double-track street railway fifteen feet in width occupied the center, leaving a space of thirty and a half feet from the outer rail on each side to the curb; there was a twelve-foot sidewalk along the north side of the street, and there had been a walk of the same width along the south side. There was also a double-track street railway along Troost Avenue. The intersection of Troost and Fifteenth was a point of transfer. It was in a busy portion of the city and during hours of business activity there was a considerable amount of both vehicular and pedestrian travel on both streets. At night after ten o'clock and when other traffic had disappeared automobiles frequently ran along Fifteenth Street at high rates of speed.

Defendants Altman owned a parcel of ground at the southeast corner of Troost Avenue and Fifteenth Street. It had a frontage of about ninety feet on the south side of Fifteenth Street. Some time during the fall of 1915 they began the construction of a seven-story brick-and-stone building of such dimensions as to cover the entire tract of ground owned by them. The contract for the excavation was separately let to Norton Brothers, who are not parties to this record. This work they did sometime during the months of September, October and November, 1915. The precise date of the commencement and completion of the excavation was not shown. But in any event the excavation, which embraced the entire building site and the sidewalk space in front, was completed on or before December 10, 1915, and barricaded next to the street. On that date the general contract for the construction of the building was let to the defendant Carroll, and he at once began the work of putting in the concrete substructure -- footings and retaining walls. The material for making the concrete: gravel, sand and cement, he deposited from time to time in Fifteenth Street adjacent to the building site. He also placed, and used there, a concrete mixer, and near the curb on the east end he built a small frame enclosure for the use of the architect and to house tools. A portion of the street so occupied, as well as the sidewalk space which had been excavated, was withdrawn from the use of the traveling public by means of a barricade at each end upon which a red light was displayed at night. The concrete construction work proceeded continously from the time it was commenced until January 9, 1916. When the work was suspended for the day, on January 8th, there was left on the street only enough material to employ the force of men at work on the job for approximately one hour at the beginning of the next working day. There was some conflict in the evidence as to how far it extended out into the street. The distance between it and the south rail of the track was variously estimated by plaintiff's witnesses at from three to eight feet.

Plaintiff pled and read in evidence parts of certain ordinances of Kansas City, in force January 9, 1916, and prior thereto, which contained among others these provisions:

"No person, firm or corporation shall use or occupy more than one-third of the roadway nor more than one-half of the sidewalk space or alley for the piling or storing of building material.

"No person, firm or corporation shall use any portion of a street for the erection or repair of a...