Merritt v. Kinloch Telephone Co.

• Decision Date: 23 December 1908
• Citation: 115 S.W. 19,215 Mo. 299
• Parties: MERRITT v. KINLOCH TELEPHONE CO. et al.
• Court: Missouri Supreme Court

115 S.W. 19

215 Mo. 299

MERRITT v. KINLOCH TELEPHONE CO. et al.

Supreme Court of Missouri, Division No. 1.

December 23, 1908.

1. EVIDENCE (§ 474)—OPINION EVIDENCE—NONEXPERT WITNESSES.

Nonexpert witnesses, who had seen a depression in the earth at the side of a telephone pole, may testify that in their opinion the depression was caused by the settling of the earth; it being difficult for the witnesses to better describe their impressions.

2. MUNICIPAL CORPORATIONS (§ 819) — DEFECTS IN STREET—INJURIES FROM CONSTRUCTION OF TELEPHONE LINE—EVIDENCE.

In an action against a telephone company for injuries to a pedestrian by slipping into a

depression made by the sinking of the earth about a new telephone pole set up in place of an old one, evidence held to justify a finding that the depression existed where the company had dug the hole for the new pole.

3. MUNICIPAL CORPORATIONS (§ 822) — DEFECTS IN STREET—INJURIES FROM CONSTRUCTION OF TELEPHONE LINE — PETITION — INSTRUCTIONS.

Where the petition, in an action against a telephone company for injuries to a pedestrian by slipping into a depression made by the sinking of the earth about a new telephone pole set up in place of an old one, charged that defendant negligently filled the hole so that the earth sank, and failed to refill the depression, or to guard the place, an instruction that it was defendant's duty to use reasonable care to refill the excavation and to provide for the natural effect of the elements on the earth excavated and replaced, and to use reasonable care to so refill the excavation that the earth would not sink so as to leave the hole dangerous to persons passing along the street, properly presented the issue of negligence charged in the petition.

4. TELEGRAPHS AND TELEPHONES (§ 10)—USE OF STREETS—PERMIT.

A city, in the exercise of its general police power for the protection of the public, may require that permits be obtained for the erection of telephone poles in its streets.

5. MUNICIPAL CORPORATIONS (§ 791) — DEFECTIVE STREETS—NOTICE.

The issuance by a city of a permit to a telephone company for leave to replace a telephone pole charges the city with knowledge of a depression occasioned by the sinking of the earth following the setting of the new pole.

6. MUNICIPAL CORPORATIONS (§ 819) — DEFECTIVE STREETS—EVIDENCE—QUESTION FOR JURY.

In an action against a city for injuries to a pedestrian by slipping into a depression in the street, evidence held to show that the depression had existed for such a length of time as to charge the city with negligence in failing to discover and remedy the defect.

Appeal from Circuit Court, Audrain County; James Barnett, Judge.

Action by Edwin F. Merritt against the Kinloch Telephone Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Charles W. Bates and Benjamin H. Charles, Boyle & Priest & Edward, and T. Miller, for appellants. Johnson, Houts, Marlatt & Hawes, L. L. Leonard, and Fry & Rodgers, for respondent.

GRAVES, J.

Plaintiff sues for personal injuries alleged to have been occasioned by a hole or depression in that portion of the street or sidewalk in the city of St. Louis at or near the northwest corner of Newstead avenue and Lucky street. Newstead avenue runs north and south, and Lucky street east and west. Plaintiff, as alleged, was walking north on the west side of Newstead avenue. At or near this corner the defendant Kinloch Telephone Company had a telephone pole, which it desired to remove and replace with a new and different one. Before doing so, it obtained, upon proper application, a written permit from the city, in this language: "September 18, 1901. Marked Exhibit B-2. Permit 1192. Permission is hereby granted to Kinloch Telephone Company to replace its pole on the northwest corner of Newstead avenue and Lucky street with a 45-foot pole, per application of September 13, 1901. Said work must be done under the supervision and control of the supervisor of city lighting and to his satisfaction." The fall by which plaintiff was injured was on February 5, 1902. The charge is that under this permit the telephone company made an excavation for the purpose of removing the old pole and putting in the new one, and that it so left the ground that when the dirt settled a hole was created, which was permitted to remain, and in which plaintiff slipped and fell, receiving the injuries sued for in this action. Suit was first brought in the city of St. Louis, but by agreement a change of venue was taken to Audrain county, where the cause was finally tried, resulting in a verdict for the plaintiff in the sum of $4,000, upon which judgment was entered. The trial was had upon a second amended petition in which the city was a party defendant. The original petition was against the telephone company alone. Answer of each defendant was a general denial and a plea of contributory negligence. Reply general denial. The appeal reaches this court owing to the fact that the city is a party; the amount of the judgment being less than the usual jurisdiction of this court.

Each defendant has filed a separate brief raising questions peculiarly applicable to itself. This necessitates a separate discussion in the course of the opinion, but there are some essential facts which are common to both, and these we will now state. As stated above, the plaintiff, at about 7 o'clock on the evening of February 5, 1902, was walking north on the west side of Newstead avenue. It appears that there was more or less snow and ice upon the walks. When he reached the south side of Lucky street, he came to a brick crossing which was eight feet in width. On this crossing was a footpath (as we take it, in the snow and ice), which had been used by pedestrians. This path the plaintiff followed. There was a lamp post, upon which was a lighted lamp, at the southwest corner of Newstead avenue and Lucky street; but plaintiff claims that after getting halfway, or more, across the street, this lamp being at his back, his vision was not materially aided thereby. A line continued straight north from the west line of the brick crossing upon which plaintiff was traveling would include a telephone pole belonging to the Kinloch Company in the walk just north of the curb on the south side of the north sidewalk on Lucky street. Plaintiff claims that to the east side of this pole was a large deep depression occasioned by the sinking of the earth following the setting of a new pole instead of an old one which was taken out. It appears that from the fence line to the outside line of the curb was a space of ten feet. In the center of this was a granitoid sidewalk six feet in width, thus leaving two feet of dirt space to the north, and two feet to the south; but out of the south two feet would be taken the curb rock space, which was six inches. The dirt space then to the south side of the walk would be eighteen inches. In this space was located the telephone pole in question. To the west of the telephone pole, partly in the granitoid and partly in the dirt space south thereof was a fire plug box. The following plat introduced in evidence, shows the situation:

Plaintiff says that as he was stepping up from...