Loewer v. City of Sedalia

• Citation: 77 Mo. 431
• Parties: LOEWER v. THE CITY OF SEDALIA, Appellant.
• Decision Date: 30 April 1883
• Court: United States State Supreme Court of Missouri

77 Mo. 431

LOEWER

v.THE CITY OF SEDALIA, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Lafayette Circuit Court.--HON. WM. T. WOOD, Judge.

AFFIRMED.

B. G. Wilkerson and Jno. Montgomery, Jr., for appellant.

Jno. F. Philips for respondent.

MARTIN, C.

This is an action to recover damages received by plaintiff by a fall from a bridge across Fourth street in the city of Sedalia. It was originally instituted in Pettis county on the 19th day of August, 1875, and was by change of venue removed to Lafayette county, where it was tried by a jury at the April term, 1879.

After the usual averments for negligence against a municipal corporation, the petition goes on to say, “that one of the streets in said city was, on the 28th day of April, 1875, designated and known as Fourth street; that at a point in said street known as ‘Woods' Addition,’ then and there was and is a large and deep ravine, over which the said city had constructed a bridge and extended partially a sidewalk on and along the northern side thereof, but unmindful of its duty in the premises, carelessly and negligently left the side of the sidewalk over said ravine wholly unprotected by railing or other guard to prevent or protect passengers from stepping or falling from said pass-way into the ravine, a depth of twelve or fifteen feet; that on the night of the 28th day of April, 1875, he was passing along said street on said night going to his home in said city in said ‘Woods' Addition,’ when, through the fault and negligence of said defendant, in failing to have such railing or other guard along said sidewalk over said bridge, or to have any light thereat, to enable persons to see their way thereat, although the said city had notice of the condition of said sidewalk, the plaintiff stepped and fell from said bridge into said ravine with great violence, by reason of which said fact he was greatly injured and bruised, and his life endangered; that his right leg near the hip-joint was broken, and the side of his said leg bruised and mashed from the knee to the hip, and his right arm was broken and dislocated near the wrist, his head seriously cut and bruised in divers places; and that in consequence of the injuries so received he was confined to his bed for two months, suffering great physical and mental pain, and was rendered an invalid for life, being unable to walk without crutches.”

The answer consists of a special denial of the material allegations in the petition, with admissions in a qualified form of many of the facts therein stated. It is denied that plaintiff stepped or fell from the bridge through the fault or negligence of defendant in failing to have railings or guards on the bridge, or a light to enable persons to see their way. The answer concludes with a well defined plea of contributory negligence on the part of plaintiff, averring “that he was and for a long time previous had been entirely familiar with the exact condition and situation of said street, bridge and sidewalk, and with the situation and condition of the ground and streets adjacent to and in the vicinity thereof; that said bridge was seventy or more feet wide, and there was not the least danger of persons exercising ordinary care falling therefrom; and defendant avers that the alleged stepping off or falling off from said bridge or pass-way, and the injuries ensuing in consequence thereof, were caused by and were the direct result of the plaintiff's own negligence, intoxication and want of care at the time and immediately previous to the time he fell from said bridge, the plaintiff being then and there intoxicated to such a degree that he failed and neglected to exercise ordinary care.”

The reply denied all new matter pleaded in the answer. The trial resulted in a verdict for the plaintiff on the 14th day of April, 1879, in the sum of $3,500.

Motions for new trial and in arrest of judgment were filed and overruled, and the case comes here upon appeal by defendant. These motions are full and broad enough to cover all the points raised in the argument, and need not be introduced into this statement. The evidence in the case accorded with the pleadings. That submitted by plaintiff, was directed to establish negligence on the part of defendant in making and maintaining the bridge without railings or guards or lights to protect persons from falling off it; the defendant's evidence was directed to establish a knowledge of the condition of the bridge and a want of ordinary care in crossing it, resulting from intoxication at the time. As the defendant, at the close of plaintiff's case, interposed a demurrer to the evidence, which was overruled, I will state in substance those portions of it supposed to bear on the issues of negligence by defendant, and contributory negligence by plaintiff.

The plaintiff testified that he was a tailor having a shop on Main street in Landes' jewelry store, and that he resided in Woods' Addition, which is in the western part of Sedalia; that there was a bridge over a ravine on Fourth street between the place of his residence and his shop; that in passing home in dry weather he would go through the commons north of the bridge where there was no crossing, but that in bad weather he would pass over the bridge; that after a rain there would be water enough in the ravine to sweep things away; that the ravine was made deeper by building up the street so as to make the bridge there, and that the bridge in question was the only one across it; that it was from twelve to fourteen feet wide, eight or ten feet high, and had no railing or other protection on either end of it; that there was no light or street lamp at the bridge; that there was a sidewalk on the north side of Fourth street and none on the south side; that he was familiar with the bridge and sidewalks, having been in the habit of frequently passing them by day and by night; that he only used the bridge and sidewalk when it was muddy; that on the night of the injury it was very dark; that he went upon the bridge from the sidewalk from the east side, and fell between twelve and one o'clock from the north end of it in trying to walk across it; that he thinks there were rocks where he fell; that when he came to himself he was in the ravine in the water with an arm and leg broken, and head bruised; that a heavy Scotch cap on his head was cut and probably saved him from being killed. The injuries and damages are fully detailed by the witness.

In respect to his condition on the night of the accident and how it came about, he testified: That he had spent the afternoon and part of the night till nine o'clock at his shop; that he then went to Beck's boarding house and saloon to see a person by the name of Slifer, with whom he was arranging for a partnership; that he was not there and plaintiff drank nothing there, that he then went to Berger's bar where he met Slifer and stayed till a little after eleven o'clock; that he possibly took a “soda” there and then left after fixing up his business with Slifer; that he then went to Landes' jewelry store to wake up the boy who slept there and get a lantern, but couldn't get in; that he then went to Herman Schmit's wine hall, where he stayed waiting for the storm to abate, till between one and two o'clock; that the storm began at eleven, and the rain began to fall about twelve o'clock; that Ivers, an express messenger, was at the hall and went part of the way home with plaintiff; that Schmit and other gentlemen were at the hall; that he did not think he drank more than two or three times with Ivers; did not think he drank the fourth time with him; that it was beer he drank; that he and Ivers started off from the hall together; that they went down Main to Kentucky street and found it flooded; then came back to Osage, went south on Osage to the market house, and then west on Second street to Kentucky street, and then south on Kentucky street by Major Beck's to Fourth street; that Ivers left him after passing up Kentucky street for his own residence, a little north of Vogler's on Moniteau avenue; that plaintiff asked Ivers for a lantern, and was told that he had none; that Ivers told him to go to Vogler's for a lantern; that he went to Vogler's and could get none; that Vogler told him that if it was not too awful stormy to take the middle of the street to the bridge, then take the sidewalk and watch the lightning; that it was very dark and began lightning and raining again; that on seeing a light at Abbott's between Vogler's and the bridge, he called, wanting a lantern; that no one came out, and he went on; that he got on the bridge from the sidewalk on the east side and waited for another flash of lightning; that a flash came; that he saw the sidewalk distinctly on the west side and started for it, as he supposed; that he aimed to cross the bridge; that his right foot gave away, tried to throw his weight on his left foot, but it was too late, and he went down; that the wind was blowing hard; that it was raining and he had his umbrella up; that it took all his strength to keep up his umbrella; that he fell from the north end of the bridge, and received the injuries he sues for.

Dr. Evans, who attended him, testified to the serious and permanent character of the injuries. He also testified that he reached him between two and three o'clock; that he smelt beer on his breath and thought he had been drinking, but did not regard him as drunk; that if he had been very drunk an hour before, he would not have been as sober as he was when found; that if a man was right drunk and would fall into a branch like that it might arouse him, but the shock would have a serious effect on him; that in the condition plaintiff was found by witness he could not have been very drunk an hour before.

The testimony of Hadlond, Abbott and Sloane was submitted in behalf of plaintiff corroborating him in respect to the character and condition of the ravine, bridge, sidewalk and the...