Mitchell v. City of Clinton

• Decision Date: 21 December 1889
• Citation: 99 Mo. 153,12 S.W. 793
• Parties: MITCHELL v. CITY OF CLINTON.
• Court: Missouri Supreme Court

12 S.W. 793

99 Mo. 153

MITCHELL v. CITY OF CLINTON.

Supreme Court of Missouri.

December 21, 1889.

MUNICIPAL CORPORATIONS — NEGLIGENCE — PLEADING.

1. In an action against a city for damages for personal injuries caused by the negligent construction of a set of public scales, owned and operated by the city, the petition must show that the city was a corporation, and that it was within the scope of its powers to construct and maintain such scale.

2. It is not necessary that the petition should specifically state the nature of the injuries sustained by plaintiff.

3. Nor is it necessary that the plaintiff should show that he was not guilty of contributory negligence, that being a matter of defense.

BLACK, J., dissenting.

Error to circuit court, Henry county; J. B. GANTT, Judge.

This action was brought by Olive Mitchell against the city of Clinton, to recover damages for the death of her husband, John C. Mitchell. There was judgment for defendant on demurrer, whereupon plaintiff sued out a writ of error.

C. B. Wilson and J. Parks & Son, for plaintiff in error. C. A. Calvird, for defendant in error.

BRACE, J.

The petition in this case, after alleging that plaintiff is the widow, and at the time of the grievances complained of was the wife, of John C. Mitchell, deceased, proceeds as follows: "Plaintiff says that defendant is a corporation under the laws of the state of Missouri, and was a corporation at the time of the happening of the grievance herein set forth. That as such corporation it was defendant's duty to keep all its streets and thoroughfares, including its public scales, and the approaches thereto, in a reasonably safe condition for public use. That at the time herein set out defendant was the owner of, and was operating, a set of long platform scales for weighing hay, corn, coal, and other heavy articles, by the wagon load, or otherwise. That said scales were being used and operated by defendant for the use of the public. That defendant charged parties weighing on said scales the sum of 10 cents per wagon for each loaded wagon weighed thereon. That on or about the 28th day of June, 1881, defendant, by ordinance, provided for a city weigher and gauger to take charge of said scales, and to weigh all hay, corn, grain, and stone coal that was required to be weighed thereon, or which might be brought to him for that purpose, and to collect from the vendor or person having the same weighed a fee of 10 cents for each and every loaded wagon weighed by him on said scales. That defendant put a weigher and gauger in charge of said scales to collect said fee of 10 cents, and that said employe of defendant was in charge of said scales at the time herein set out. Plaintiff says said scales were situated within the corporate limits of defendant. That said scales, and the approaches thereto, were at the time complained of very narrow, being barely wide enough for a wagon to drive or stand on, and were elevated a great distance from the ground, to-wit, about three feet. Plaintiff says that at the time of, and for a long time before, the happening of the grievances herein complained of, defendant, unmindful of its duties in the premises, carelessly and negligently left the sides of said scales, and the approaches to the same, wholly unprotected by railing, banister, or any other guard whatever to prevent wagons, while being driven on said scales, or after getting on the same, or in being driven off the same, from falling off said scales or approaches, and being overturned in case of accident, although the same was necessary to make said scales and approaches reasonably safe, and defendant, at the time, and for a long time before, had full knowledge of the unprotected and dangerous condition of said scales and approaches. Plaintiff says that on the ____ day of August,...