Perrigo v. City of St. Louis

• Decision Date: 22 December 1904
• Parties: LUCINDA PERRIGO v. CITY OF ST. LOUIS and JULIA BLANKE, Appellant
• Court: Missouri Supreme Court

84 S.W. 30

185 Mo. 274

LUCINDA PERRIGO v. CITY OF ST. LOUIS and JULIA BLANKE, Appellant

Supreme Court of Missouri, First Division

December 22, 1904

Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.

Affirmed.

Charles W. Bates and Benjamin H. Charles for appellant city of St Louis.

(1) A merely slight difference in levels along a sidewalk does not constitute an obstruction within the meaning of the law. Burns v. Bradford, 137 Pa. St. 361; Hamilton v Buffalo, 10 Mun. Corp. Cases (N. Y.) 786; s. c., 65 N.E. 944; Haggerty v. Lewiston, 8 Mun. Corp. Cases (Maine) 903; s. c., 50 A. 55; Dubois v. Kingston, 102 N.Y. 219. (2) The city is not an insurer of the safety of travelers on the streets. It is not liable unless the street was in a condition unsafe to be used by persons exercising ordinary care in travelling thereon. Buckley v. Kansas City, 156 Mo. 16; Carvin v. St. Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 317. (3) Although the city may have been negligent, still if the negligence did not contribute to the injury, no recovery can be had on account of such negligence. Hutchinson v. Railroad, 161 Mo. 246. (4) Where the plaintiff's own testimony shows she is guilty of contributory negligence she can not recover. Failure to look where she was going when she knew the street was obstructed by the cellar door, and was unsafe, if it was unsafe, is negligence as matter of law on the part of plaintiff, and the court should have so declared. Cohn v. Kansas City, 108 Mo. 387; Hudson v. Railroad, 101 Mo. 30; Roberts v. Tel. Co., 166 Mo. 370; Sindlinger v. Kansas City, 126 Mo. 315; Hogan v. Railroad, 150 Mo. 55; 7 Am. and Eng. Ency. of Law (2 Ed.), 412; 4 Am. and Eng. Ency. of Law (1 Ed.), 15. The following cases from other States illustrate the ruling above stated: Benton v. Philadelphia, 198 Pa. St. 396; Erie v. Magill, 101 Pa. St. 616; Schaefler v. Sandusky, 33 Ohio St. 246; Quincy v. Barker, 81 Ill. 300; Hutchins v. Priestly, etc., Co., 61 Mich. 252; Cowie v. Seattle (Wash.), 4 Mun. Corp. Cas. 417; Cloney v. Kalamazoo (Mich.), 4 Mun. Corp. Cas. 640; Salem v. Walker (Ind. App.), 1 Am. Neg. Rep. 430; Bailey v. Brown Township (Pa.), 6 Am. Neg. Rep. 193; Grabbel v. Sioux City, 38 Iowa 390; Dale v. Webster County, 76 Iowa 370; Huffan v. State Center, 57 Iowa 538; Iahn v. Ottawa, 60 Iowa 429; Tel. Co. v. Iones (Neb.), 81 N.W. 435; Tasker v. Farmingdale, 91 Mo. 521; Gilmer v. Deerfield, 15 Gray 577; Corbett v. Leavenworth, 27 Kan. 673; Moone v. Richmond, 85 Va. 538; Walker v. Reidsville, 96 N.C. 385. (5) Assuming that the city was negligent, still if that negligence would not have caused the accident had the plaintiff been guilty of no negligence, the city can not be held liable; and the court erred in refusing so to instruct. (6) If a defective condition, or obstruction, be such that it is discovered by only one out of the many persons who pass by or over it, in the ordinary pursuit of business or pleasure, it can not be said to be notorious, or to be such a defect that the municipality is chargeable with notice of its existence. Carvin v. St. Louis, 151 Mo. 346; Burns v. Bradford, 137 Pa. St. 361. (7) Plaintiff was not entitled to recover damages on account of diminished ability to work or labor. Smith v. St. Joseph, 55 Mo. 456; Plummer v. Milan, 70 Mo.App. 601; Wallis v. Westport, 82 Mo.App. 527; Thompson v. Railroad, 135 Mo. 217; Blair v. Railroad, 89 Mo. 334; Fink v. Campbell, 70 F. 664; Lavelle v. Stifel, 37 Mo.App. 525.

Hickman P. Rodgers for appellant Blanke.

(1) The owner of a lot abutting a street owes no duty to the public to keep the sidewalk thereof in repair; nor to remove a dangerous obstruction therefrom. Norton v. St. Louis, 97 Mo. 537; St. Louis v. Ins. Co., 107 Mo. 92; Baustian v. Young, 152 Mo. 317. (2) "A city can not by ordinance create a right of action between third persons, nor enlarge the common law liability of citizens among themselves. This can only be done by a contract between the city and the company sought to be charged, which inures to the benefit of the citizen." Holwerson v. Railroad, 157 Mo. 216.

Daniel Dillon for respondent.

(1) It was the duty of the city to keep the sidewalk in a reasonably safe condition for people walking over it, by day and by night. Warren v. Independence, 153 Mo. 598; Welsh v. St. Louis, 73 Mo. 73; Russell v. Columbia, 74 Mo. 490; Norton v. St. Louis, 97 Mo. 541; Brennan v. St. Louis, 92 Mo. 486; Roe v. Kansas City, 100 Mo. 190; Franke v. St. Louis, 110 Mo. 521; Flynn v. Neosho, 114 Mo. 572; Vogelsang v. St. Louis, 139 Mo. 135; Burns v. St. Joseph, 91 Mo.App. 495. (2) There is no evidence tending to prove negligence on the part of plaintiff. Perrette v. Kansas City, 162 Mo. 250; Miller v. Railroad, 164 Mo. 199; Powers v. Ins. Co., 91 Mo.App. 64. But even if there was evidence tending to prove contributory negligence on the part of plaintiff, the question of whether or not she was negligent was fairly submitted to the jury and found in her favor. In the instruction given by the court the jury were plainly told that before they could find a verdict in favor of plaintiff they must find that she was guilty of no negligence which directly contributed to her fall. And in the instruction given for plaintiff the jury were told that in order to find for plaintiff they must believe from the evidence that plaintiff was using ordinary care for her own protection at the time her foot struck the stone flagging or cellar door. Flynn v. Neosho, 114 Mo. 572; Culverson v. Maryville, 67 Mo.App. 347; Waltmeyer v. Kansas City, 71 Mo.App. 358; Bradley v. Spicardsville, 90 Mo.App. 421; Huff v. Marshall, 97 Mo.App. 546; Powers v. Ins. Co., 91 Mo.App. 64. (3) Under the evidence the judgment in favor of plaintiff against the city of St. Louis is clearly for the right party, and even if, for any reason, the judgment against defendant Blanke should be reversed, still the judgment against the city of St. Louis should be affirmed. Where reversible error has been committed against one defendant and not against the other, this court will not reverse the entire judgment, but will reverse it as to the defendant against whom error has been committed, and affirm it as to the other. Kleiber v. Railroad, 107 Mo. 240; State ex rel. v. Tate, 109 Mo. 269; Neenan v. St. Joseph, 126 Mo. 89; Wiggins v. St. Louis, 135 Mo. 558; O'Rourke v. Railroad, 142 Mo. 342; Bank v. Umrath, 55 Mo.App. 48; McElroyd v. Ford, 81 Mo.App. 505. (4) But the judgment should be affirmed against defendant Blanke also. Counsel for Mrs. Blanke claim that she is not liable at all under the rule that it is not the duty of the property-owner to keep the sidewalk in front of his property in a reasonably safe condition, and that the city can not impose this duty on her by ordinance in such a way as to give a third person a cause of action against her for failure to comply with the terms of the ordinance. I do not deny that this is the general rule under the decisions of this court. But there is another rule quite as firmly established as the one relied on by Mrs. Blanke, and that is stated in Reedy v. Brewing Assn. and City of St. Louis, 161 Mo. 534. Benjamin v. Railroad, 133 Mo. 284; Jelly v. Pieper, 44 Mo.App. 380. The ordinance in question belongs to the same class as those regulating the rate of speed of street cars, and requiring signal lights after dark, and the ringing of bells, etc., and those regulating the rate of speed of trains of steam railroads running through cities, and prescribing how they shall be manned, and requiring watchmen or gates at street crossings, etc. The legality of these ordinances and their competence as evidence have been maintained in so many cases and for so many years that the law in regard to those points, I think, is looked upon as settled. Hanlon v. Railroad, 104 Mo. 387; Fath v. Railroad, 105 Mo. 537; Jackson v. Railroad, 157 Mo. 621; Hutchinson v. Railroad, 161 Mo. 253; Weller v. Railroad, 164 Mo. 205; Moore v. Railroad, 95 Mo.App. 739. And a violation of this ordinance was negligence per se, and rendered Mrs. Blanke liable for all damages resulting from such violation. This proposition, too, has been settled by so many decisions of this court that it is no longer open for discussion. Keim v. Railroad, 90 Mo. 321; Schlereth v. Railroad, 96 Mo. 515; Jackson v. Railroad, 157 Mo. 642; Hutchinson v. Railroad, 161 Mo. 253. (5) Even a married woman, when she has been injured so severely as to have her ability to work and labor diminished, ought to receive greater damages than when she is not injured severely enough to cause a diminution of her ability to work or labor. Ross v. Kansas City, 48 Mo.App. 445; McLean v. Kansas City, 81 Mo.App. 72; Cullar v. Railroad, 84 Mo.App. 340; Smith v. Warden, 86 Mo. 382; Blair v. Railroad, 89 Mo. 383; Railroad v. Johnson, 90 Ga. 508; Jordan v. Railroad, 138 Mass. 425. In the case at bar there was no evidence offered as to the value of plaintiff's time or services.

BRACE P. J. Robinson, J., absent.

OPINION

BRACE, P. J.

This is an appeal from a judgment of the St. Louis City Circuit Court in favor of the plaintiff against the defendants for the sum of $ 3,000.

The petition, omitting caption, is as follows:

"Plaintiff states that the defendant, the city of St. Louis, is and at the times hereinafter stated, was a municipal corporation in the State of Missouri, and that defendant, Julia Blanke, is and at the times hereinafter mentioned was the owner and proprietor of a house and lot fronting and abutting the south side of Manchester avenue, in said city, between Leffingwell avenue and Ewing avenue, said house being numbered 2822 Manchester avenue, and said house and lot abutted the sidewalk on the south side of said avenue. And plaintiff further says that...