Meehan v. Union Electric Light & Power Company

• Decision Date: 06 December 1913
• Citation: 161 S.W. 825,252 Mo. 609
• Parties: JAMES C. MEEHAN, Appellant, v. UNION ELECTRIC LIGHT & POWER COMPANY et al
• Court: Missouri Supreme Court

161 S.W. 825

252 Mo. 609

JAMES C. MEEHAN, Appellant, v. UNION ELECTRIC LIGHT & POWER COMPANY et al

Supreme Court of Missouri, First Division

December 6, 1913

Appeal from St. Louis City Circuit Court. -- Hon. George H Williams, Judge.

Affirmed.

Joseph A. Wright for appellant.

(1) "A city owns and controls its streets as a trustee for the public. It, therefore, stands charged by the law with the primary and bounden duty of keeping them free from nuisances defects, and obstructions caused by itself or by third parties if it (in the latter instance) had actual or constructive notice thereof in time to abate the nuisance remove the obstruction or repair the defect. It cannot shirk that duty or shift it over to, or halve it with, others. So much is clear law in Missouri." Benton v. St. Louis, 217 Mo. 700; Mehan v. St. Louis, 217 Mo. 35; 2 Elliott on Roads and Streets (3 Ed.), pars. 830, 831; 1 Wood on Nuisances, secs. 248-250. (2) The defendants all co-operated and participated in creating the peril to which plaintiff was exposed and are, therefore, jointly and severally liable. Mehan v. St. Louis, 217 Mo. 35; Hollis v. Merchants' Assn., 205 Mo. 508. (3) The negligent acts averred were the proximate cause of plaintiff's injury. Woodson v. Railroad, 224 Mo. 856, 30 L.R.A.(N.S.) 931; Phillips v. Railroad, 211 Mo. 419; Dean v. Railroad, 199 Mo. 386. (4) Defendants are liable for a peril created and injury done to plaintiff even though the motive was the entertainment of visitors within the city. Hollis v. Merchants' Assn., 205 Mo. 508; Dowell v. Guthrie, 99 Mo. 653; Wheeler v. Ft. Dodge, 131 Iowa 566; Johnson v. New York, 186 N.Y. 139; Landau v. New York, 180 N.Y. 72; Richmond v. Smith, 101 Va. 161; Elam v. Mt. Sterling, 20 L.R.A.(N.S.) 512; Little v. Madison, 42 Wis. 643; Shinnick v. Marshalltown, 137 Iowa 72.

Schnurmacher & Rassieur for respondent, Union Electric Light & Power Company.

(1) As to Union Electric Light & Power Company, the petition avers in substance merely that pursuant to a contract between it and the city of St. Louis for the lighting of certain streets, it erected the pole in question, and before the cement in which it was placed had set and hardened the other defendants fastened an iron cable thereto and to other poles in the line and that owing to the heavy and violent pressure against the cable by the throng of people, assembled to witness the parade, the pole was caused to fall. Accepting as true all of the allegations, they do not state such facts as would warrant a judgment against this defendant. There is no averment that this defendant erected the pole which fell for any purpose other than furnishing light under its general contract with the city for lighting certain streets, and there is no averment that the pole was not well and sufficiently set for that purpose. The allegation is that the pole was "insufficient and insecurely fastened to withstand the pressure of a large crowd of persons upon said iron rope or cable attached thereto," but there is no allegation that the Union Electric Light & Power Company knew the pole was to be put to any such use or subjected to any such pressure. As to this defendant, therefore, the demurrer was properly sustained. (2) The petition seeks to charge three defendants as tort-feasors. "While joint tort-feasors are severally liable for the injuries inflicted, yet to hold them jointly liable they either must have acted in concert or the act of one must have been of such a character as to have naturally resulted in causing the act of the other." Stanley v. Railroad, 114 Mo. 606; Wiest v. Philadelphia, 200 Pa. St. 148; 29 Cyc. 488. The allegations of the petition show no joint negligence of the Union Electric Light & Power Company with the other defendants, or with either of them. It erected a pole for ordinary lighting purposes; not for the purpose of supporting cables "to withstand the pressure of a large crowd." Its act, even if negligent, was a separate and not a concurring act. (3) The petition shows that the act of the defendant city, in causing the erection of the pole and in stringing the cable, was a proper exercise of the police power, and therefore not unlawful. Hesselbach v. St. Louis, 179 Mo. 505; Simon v. Atlanta, 67 Ga. 618. (4) Even if the act charged against the Union Electric Light & Power Company amounts to negligence, yet it was not the proximate cause of the accident, and therefore no case is stated against the Electric Company. Haley v. Transit Co., 179 Mo. 30; Railroad v. Kellogg, 94 U.S. 475. (5) Negligence is not the proximate cause of an accident, unless, under the circumstances, the accident was the probable and natural consequence, and was such as might and ought to have been foreseen by the defendant charged with such negligence. Strack v. Tel. Co., 216 Mo. 601; Paden v. Van Blarcom, 181 Mo. 127; Haley v. Railroad, 179 Mo. 30; Warner v. Railroad, 178 Mo. 125; Fuchs v. St. Louis, 167 Mo. 620; Brewing Assn. v. Talbot, 141 Mo. 674; Mathiason v. Mayer, 90 Mo. 585.

Seddon & Holland for respondent, Bell Telephone Company.

(1) The amended petition of plaintiff does not state a cause of action against the Bell Telephone Company, because it contains no averment that the servants of defendant, Bell Telephone Company, at the time in question, were acting in the course of the discharge of the duties of their employment. McPeak v. Railroad, 128 Mo. 636. (2) The amended petition of plaintiff does not state a cause of action against the Bell Telephone Company, because it contains no allegation that the cable in question was not reasonably sufficient for the purpose for which it was furnished. Sindlinger v. Kansas City, 126 Mo. 315; Kelly v. Lawrence, 195 Mo. 75; Roberts v. Tel. Co., 166 Mo. 369; Tel. Co. v. Speicher, 59 N.J. 123; York v. Railroad, 117 Mo. 405. (3) The amended petition of plaintiff does not state a cause of action against the Bell Telephone Company, because it appears upon the face of said petition that the happening therein described could not reasonably have been anticipated by said defendant. Graney v. Railroad, 157 Mo. 666; Brewing Assn. v. Talbot, 141 Mo. 674; Goodrich v. Railroad, 152 Mo. 222; Hysell v. Swift, 78 Mo.App. 39; Lohring v. Construction Co., 94 S.W. 747. (4) The amended petition of plaintiff does not state a cause of action against the Bell Telephone Company, because it appears from said petition that the Telephone Company, if acting at all in the premises, was merely acting as the agent of the city. Under such circumstances, it would not be held liable to third persons for acts of nonfeasance. O'Neil v. Young, 58 Mo.App. 628; Harriman v. Stowe, 57 Mo. 93; Steinhauser v. Spraul, 127 Mo. 541; Kelly v. Railroad, 122 F. 286.

William E. Baird for respondent, City of St. Louis.

(1) Municipal authorities may properly withdraw from general use a part of the highway upon such occasions as the safety and comfort of the public demand. Hesselbach v. St. Louis, 179 Mo. 505; Simon v. Atlanta, 67 Ga. 618. (2) The petition shows that a great public celebration had been planned and the stringing of the wire, so far from being a nuisance was a wise precaution for the comfort of spectators and in order to prevent an interruption of the ceremonies. Simon v. Atlanta, 67 Ga. 618; Dillon Mun. Corp. (5 Ed.), sec. 1174. (3) In placing the wire as a warning or guard, the city was not acting in its corporate capacity, but was exercising its police power and therefore is not liable for any alleged negligence. Williams, Liab. for Municipal Tort, p. 16; Heller v. Sedalia, 53 Mo. 153; Armstrong v. Brunswick, 79 Mo. 319; Kiley v. Kansas City, 87 Mo. 103; Murtaugh v. St. Louis, 44 Mo. 479; Welsh v. Rutland, 56 Vt. 228.

OPINION

WOODSON, P. J.

This was a suit instituted in the circuit court of the city of St. Louis, by the plaintiff against the defendants, to recover the sum of $ 25,000 damages alleged to have been received by him for personal injuries, inflicted by the alleged negligence of the latter.

The defendants separately filed demurrers to the petition, which were by the circuit court sustained; and plaintiff declining to plead further, judgment was duly rendered against him, from which he timely appealed to this court.

In the very nature of things this state of the record and the legal propositions presented thereby for determination, calls for a careful consideration of the petition.

It reads as follows (formal parts omitted):

"Plaintiff by leave of court first obtained, files this his second amended petition, and for cause of action against defendants, states:

"That defendant Union Electric Light & Power Company is and was at all times hereinafter mentioned, a corporation duly organized and existing under the laws of the State of Missouri and engaged in furnishing light and power for hire in the city of St. Louis, Missouri.

"That defendant Bell Telephone Company of Missouri is and was at all times hereinafter mentioned, a corporation duly organized and existing under the laws of the State of Missouri, and engaged in operating a telephone system and in stringing and maintaining wires and cables, along and over the streets of the city of St. Louis, Missouri.

"That defendant city of St. Louis is and was at all times hereinafter mentioned, a municipal corporation, duly organized and existing under the laws of the State of Missouri and having charge of numerous streets in the city of St. Louis, State of Missouri.

"That plaintiff James C. Meehan, is and was at all times hereinafter mentioned, a resident of the city of Decatur, State of Illinois, and employed as general foreman in the car department of the Wabash Railroad Company at said place.

"That prior to the injuries hereinafter complained of and on the day of , 1909...