Loth v. Columbia Theater Co.

• Decision Date: 22 May 1906
• Parties: LOTH v. COLUMBIA THEATER CO. et al.
• Court: Missouri Supreme Court

94 S.W. 847

197 Mo. 328

LOTH v. COLUMBIA THEATER CO. et al.

Supreme Court of Missouri, Division No. 2.

May 22, 1906.

1. MUNICIPAL CORPORATIONS—USE OF STREETS —SIGNS—ORDINANCE.

A city ordinance, prohibiting the placing of signs above the street more than 18 inches beyond the building line if less than 8 feet above the pavement, or more than 2 feet beyond the building line at any height, provided that merchants, manufacturers, and others are not prohibited from setting up illuminated signs or lettered lamps more than 18 inches from the building line, at least 12 feet above the sidewalk, does not authorize a theater company to maintain an electric light sign 14 feet above the sidewalk extending 6 feet over the street.

2. NEGLIGENCE—INDEPENDENT CONTRACTORS.

Where an electric sign company, under the employment and direction of a theater company, lowered a sign at the theater and changed the lettering, and in doing so allowed the sign to fall and injure a pedestrian, the theater company was not relieved from liability on the ground that the sign company was an independent contractor.

3. SAME—NUISANCE PER SE.

In an action against a theater company for injuries from the falling of a sign, an instruction erroneously basing the company's liability on the theory that the sign was a nuisance per se was not applicable, though the company admitted in its pleading that another company employed by it was negligent in hanging the sign.

4. NUISANCE—WHAT CONSTITUTES.

An electric light sign, 12 to 14 feet long, and 5 feet 10 inches wide, weighing from 200 to 350 pounds, placed on the side of the theater balcony, 14 feet above the sidewalk, was not unlawful so as to constitute a nuisance per se.

5. MUNICIPAL CORPORATIONS — PEREMPTORY INSTRUCTION.

In an action against a city for injuries to a pedestrian from the falling of a sign, based on the claim that the maintenance of the sign was a violation of a city ordinance, where the ordinance was not introduced in evidence, a peremptory instruction should have been given in favor of the city.

6. SAME—NEGLIGENCE OF CITY.

Where a sign maintained by a theater company over a street was not in itself unlawful, and had never before fallen, and no negligence of the city was pleaded or proven, the city was not liable for injuries from its falling, though the city knew of its being suspended.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Bernard Loth against the Columbia Theater Company and another. From a judgment in favor of plaintiff, defendants appeal. Judgment against the Columbia Theater Company reversed, and cause remanded. Judgment against the city of St. Louis reversed, without remanding.

Robt. L. McLaran, Chas. W. Bates, and Ben. H. Charles, for appellants. Chester H. Krum and David Goldsmith, for respondent.

BURGESS, P. J.

This is an action for $25,000 damages for personal injuries alleged to have been sustained by plaintiff on October 22, 1899, by reason of the alleged negligence of workmen of the Chase Electric Sign Company in permitting an illuminated sign, which they were lowering from a balcony, to fall upon plaintiff. The plaintiff recovered a verdict and judgment against the defendants for the sum of $15,000. In due time the defendants filed separate motions for new trial and in arrest, which were overruled, and they bring the case to this court by appeal for review.

From the record the following facts appear: At the time of the accident, and for some time prior thereto, the Columbia Theater Company occupied a building fronting on the west side of Sixth street in the city of St. Louis, which building the company used for a theater. Attached to this building and extending over the width of the sidewalk was a balcony supported by pillars at the outer edge of the sidewalk. This balcony was about 14 feet high; its sides facing north and south. Along each of these sides the defendant company suspended a large sign, from 12 to 14 feet long and 5 feet 10 inches wide, and weighing from 200 to 350 pounds, according to the number of letters placed thereon. The sign by the fall of which plaintiff was injured was put up and used for advertisement of attractions at the theater; such attractions being named and described by electric bulbs arranged in the form of letters on the sign. These letters were changed every Sunday morning, between 8 and 11 o'clock, to correspond with the change in the attractions. In order to change the letters it was necessary to remove the sign from its fastenings and lower it, and after the change was made it was raised and again suspended from the balcony. On Sunday morning, October 22, 1899, the plaintiff was walking north on the west side of Sixth street and passed under the balcony, at which time workmen were engaged in lowering the sign on the north side of the balcony, when the sign fell upon and struck the plaintiff, shattering one of his legs. These facts are substantially alleged in the petition, and the petition further alleges that the sign was "at all times a menace and source of danger to persons passing underneath it on said sidewalk." By the petition as originally drawn one Meyers, the owner of the theater building, was made a party defendant, but at the trial the plaintiff dismissed as to him, and struck out all allegations with reference to him in the petition. The defenses of the theater company were a general denial, a plea of contributory negligence by plaintiff, and a plea to the effect that the work was being performed by an independent contractor, also a plea setting up section 1157 of the Municipal Code of the city of St. Louis. The defenses of the city were a general denial and a plea of contributory negligence. The cause was tried on the theory that the facts above set forth made the sign an illegal encroachment upon the sidewalk, and a nuisance; that the theater company was liable for the injury caused by the fall of the sign, because it had created this encroachment or nuisance; and that the city of St. Louis was liable for the injury, because it had tolerated the encroachment or nuisance. The theater company contests the claim that the sign which caused the injury was originally a nuisance, or that it became such by reason of its use and the weekly changes made in it. The claim of the plaintiff for a recovery against the city of St. Louis was based upon its toleration of the alleged illegal encroachment on the sidewalk by reason of the suspension and weekly changes of the sign. The evidence tended to show knowledge on the part of the city both of the suspension and weekly change of the sign. Officer Schlostein, of the St. Louis police force, testified that he noticed the signs on the north and south sides of the balcony; that they were changed every Sunday morning, between 8 and 11 o'clock; and that he witnessed one of the weekly changes of these signs about two weeks prior to the injury. David Covington, another member of the city police force, testified that he noticed these signs suspended along the sides of the balcony; that he knew they were changed every week, and saw the signs lit up every evening; that he witnessed the hanging of the sign by which plaintiff was injured; that he watched the parties hoisting the sign up for a few minutes, and when they got it nearly into position he passed on, turning the corner and going east; that at one time he "beckoned to some ladies and children that happened to stop there, and hollered to them and said, `You had better move on; that is no safe place for you'"; that after he had turned the corner, and walked east towards Broadway, he heard a commotion, and then went back to the theater building and found that the plaintiff had been injured. The defendants sought to establish the legality of the sign by offering in evidence an ordinance of the city of St. Louis, which ordinance the court refused to admit. There was evidence upon the part of the theater company tending to show that the sign by which the plaintiff was injured was its sign; that the suspension of and weekly changes in said sign were by its direction, under a contract made by it with a corporation known as the "Chase Electric Sign Company"; and that said sign company was an independent contractor. Defendant company also offered evidence tending to show that the suspension of signs, lamps, and other things over the sidewalks in front of theaters and hotels was a custom long established in the city of St. Louis, which evidence was excluded by the court.

At the close of all the evidence, the defendants asked the court to give a peremptory instruction to the jury to find for defendants, which was refused, and defendants excepted. The court then, at the instance of plaintiff, and over the objection and exception of defendants, instructed the jury as follows: "(1) If the jury believe from the evidence that on or about October 22, 1899, a sign of the character mentioned in the evidence was being suspended from or affixed to the north side of the balcony of the Columbia Theater Company, which is mentioned in the evidence, and over and above the sidewalk of Sixth street in this city; that said sign was so being suspended or affixed under contract therefor made by the Columbia Theater Company; that the plaintiff was at said time passing over said sidewalk, and that, as he did so, said sign fell and struck and injured him; and that the plaintiff was not guilty of negligence directly contributing to such injury— then the jury will find for the plaintiff as against the Columbia Theater Company. And if the jury find the facts to be as aforesaid from the evidence, and further find from the evidence that, when said sign was being suspended or affixed as aforesaid, the city of St. Louis knew of such suspension or affixing of said sign, then the jury will furthermore find for the plaintiff as against the city of St. Louis. (2) The jury are instructed that the police force of the city of St. Louis...