Mehan v. City of St. Louis

• Decision Date: 25 February 1909
• Parties: MEHAN v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

116 S.W. 514

217 Mo. 35

MEHAN v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri, Division No. 1.

February 25, 1909.

1. MUNICIPAL CORPORATIONS (§ 762)—TORTS —FAILURE TO ENFORCE ORDINANCE—LIABILITY.

The failure to enforce city police regulations, making it unlawful to cast nails, etc., in public alleys, whereby persons might be injured, and requiring red lights to be placed at night on loose material in alleys, does not impose on the city liability for injuries to a boy falling over a pile of boards with projecting nails, which was left in a public alley without a red light thereon.

2. MUNICIPAL CORPORATIONS (§ 816) — OBSTRUCTIONS IN ALLEY — SUFFICIENCY OF COMPLAINT.

Where a complaint against a city for injuries sustained in a public alley by falling over loose boards with projecting nails is based on the failure to enforce police regulations, and is insufficient in that the city is not liable for the failure to enforce such regulations, the complaint will be upheld if, disregarding the allegations as to the regulations, it states a good cause of action at common law for negligence.

3. MUNICIPAL CORPORATIONS (§ 816) — OBSTRUCTIONS IN ALLEY—SUFFICIENCY OF COMPLAINT.

A complaint against a city and a construction company for injuries caused by falling over loose boards with projecting nails, which charges that the city had charge of the alley; that the alley was within the city limits, and was largely traveled by day and night; that the construction company, under authority of the city, placed the obstruction in the alley; that plaintiff, while passing along the alley in the nighttime while it was not lighted, stumbled and fell over the obstruction and was injured —states a good cause of action for negligence at common law.

4. MUNICIPAL CORPORATIONS (§ 816) — OBSTRUCTIONS IN ALLEY—GENERAL ALLEGATIONS OF NEGLIGENCE.

A complaint against a city for injuries sustained by falling over loose boards with projecting nails placed in a public alley is sufficient, in the absence of a motion to make definite and certain, and especially after verdict, if the negligence is charged in general terms.

5. MUNICIPAL CORPORATIONS (§ 816) — OBSTRUCTIONS IN ALLEY—NOTICE—PLEADING.

Where a city grants permission for an act to be done in the streets, the law charges it with notice of every thing which is done pursuant to that permission; and hence, in an action for injuries by falling over boards with projecting nails, placed in a public alley by permission of the city, that the city had notice of the obstruction need not be alleged.

6. MUNICIPAL CORPORATIONS (§ 821) — OBSTRUCTIONS IN ALLEY—QUESTION FOR JURY.

In an action against a city for injuries caused by falling over loose boards with projecting nails placed in a public alley, evidence held sufficient to take the case to the jury.

7. MUNICIPAL CORPORATIONS (§ 821) — OBSTRUCTIONS IN ALLEY—LIABILITY OF CONSTRUCTION COMPANY—QUESTION FOR JURY.

In an action against a city and a construction company for injuries caused by falling over loose boards with projecting nails, claimed to have been placed in the alley by the construction company, whether the construction company was negligent in placing the boards in the alley held, under the evidence, for the jury.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by Raymond Mehan, by next friend, against the City of St. Louis and others for personal injuries. From an order setting aside plaintiff's nonsuit and granting a new trial, defendants appeal. Affirmed.

This suit was instituted to recover damages for personal injuries sustained by Raymond Mehan, a minor, by his next friend, which injuries were caused by the alleged negligence of the defendants. At the trial plaintiff suffered a nonsuit, and filed a motion to set same aside, which was by the court sustained. From the order sustaining that motion defendants appealed to this court.

The petition upon which the case was tried (which for convenience I have divided in six paragraphs), after stating certain formal proceedings regarding the appointment of the next friend and the incorporation of the defendants, in substance, charged:

(1) That the defendant city "owned, used, dedicated, and accepted certain public alleys and thoroughfares in the said city of St. Louis, which the public continually used for a long period, to wit, 20 years prior to and at the time of the injuries hereinafter mentioned. That among such public alleys and thoroughfares said city owned, used, dedicated, and accepted, was and is a certain public alley or thoroughfare, leading from Easton avenue to Leonard avenue in said city, which adjoins the fire engine house No. 17 in said city of St. Louis, Mo. That said public alley or thoroughfare, and real estate upon which said engine house stands, was deeded to said city of St. Louis on May 14, 1872, and the deed thereto was accepted and recorded by the city of St. Louis, June 22, 1872."

(2) "Plaintiff states that on or about the 16th day of November, 1903, the defendants, their agents, representatives, and servants negligently and carelessly obstructed, and allowed said public alley or thoroughfare to be obstructed, with material, lumber, and flooring, which had nails or pieces of iron attached and penetrating said material, lumber, or flooring, to be cast or placed in said public alley, or thoroughfare, and that plaintiff, on the night of November 16, 1903, while passing along and over said public alley, or thorough-fare, which was used by pedestrians at all hours of the day, was caused to stumble and fall upon the said material, lumber, and flooring, thereby causing the nails or pieces of iron attached to said lumber, material, and flooring to penetrate his hand and ankle, whereby he was permanently injured."

(3) "Plaintiff states that defendants, their agents, representatives and servants knew or by the exercise of ordinary care would have known that said material, lumber and flooring, with nails or pieces of iron penetrating and protruding from same, were placed and allowed to remain in said alley or thoroughfare."

(4) "Plaintiff further states that the defendants, their agents, representatives, and servants, in so unlawfully and negligently obstructing and allowing said public alley or thoroughfare to be obstructed with material, lumber, and flooring, with nails or pieces of iron penetrating and protruding therefrom, was and is in violation of section 1524, art. 55, chapter 18, of the Municipal Code of the City of St. Louis, ordinance 19,991, approved April 3, 1900, making it unlawful `for any person to cast or place on the public streets, alleys or thoroughfares any * * * nails * * * or any substance whereby horses or mules or other quadrupeds or persons or vehicles may be injured. * * *'"

(5) "Plaintiff further states that it was at night when the injuries herein mentioned were inflicted upon him, and that the defendants, their agents, and servants failed and neglected to place red-lighted lanterns on the pile or piles of material in said alley, thereby violating ordinance 19,991, section 925 of art. 2 of c. 12 of the Municipal Code of the City of St. Louis, approved April 3, 1900, requiring `red lanterns' to be displayed `during the whole of every night at each end of every pile of material in any street or alley.'"

(6) "Plaintiff states that by reason of the negligence and carelessness of the defendants, the city of St. Louis and the Baerveldt Construction Company, their agents, representatives, and servants, as above set forth, he has been permanently injured," etc., in the sum of $10,000.

The record discloses that the place where the injury occurred was in a 12-foot alley, alongside the fire engine house No. 17, belonging to the defendant city, several miles removed from the business center. The alley was about 120 feet in length, and was quite extensively used by pedestrians in going from Easton to Leonard avenues, which were located in the northwest portion of the city. The plaintiff was about 12 years of age, and had been a newsboy for several years, and had lived in the vicinity of the accident, and had, with others, been in the custom of using said alley. The injury occurred about 8 p. m., and plaintiff's testimony tended to show the alley was not lighted, but was so dark that he could not see the obstructions which caused his injury; that he was walking up the center of the alley from Leonard to Easton avenues when injured. That prior to, and on the day of,...