Richardson v. City of Hannibal
Decision Date | 24 May 1932 |
Docket Number | No. 30043.,30043. |
Citation | 50 S.W.2d 648 |
Parties | WILLIAM I. RICHARDSON, Appellant, v. CITY OF HANNIBAL, a Municipal Corporation. |
Court | Missouri Supreme Court |
Appeal from Ralls Circuit Court. — Hon. Charles T. Hays, Judge.
AFFIRMED.
Mahan, Mahan & Fuller for appellant.
(1) Plaintiff's evidence showed that he had a good cause of action and the court erred by its instructed verdict for the defendant. Henson v. Kansas City, 277 Mo. 552; Kame v. Railroad, 254 Mo. 196; Munn v. Ill., 94 U.S. 113, 142, 24 L. Ed. 90; Hinds v. Marshall, 22 Mo. App. 214; Hewitt v. Seattle, 113 Pac 1084; Hillstrom v. St. Paul, L.R.A. 1917B, 548; Emery v. Philadelphia, 16 Am. Neg. Rep. 567; Herron v. Pittsburg, 93 Am. St. Rep 799; Judd v. Hartford, 77 Am. St. Rep. 314; Maxwell v. Miami, 100 So. 147; Tallahassee v. Kaufman, 100 So.. 150. The conduct of the city of Hannibal in passing an ordinance requiring the fire department to keep close to the curb on the right hand side of the street and the traveler in the street to go immediately to the curb on the right hand side when meeting any part of the fire department, and then violating its own ordinance, by crossing over to the left hand side of the street and hitting and injuring plaintiff while he was properly parked, was and is a nuisance for which the defendant is liable. Powell v. Brookfield Brick & Tile Co., 104 Mo. App. 713; M.K. & T. Ry. Co. v. Anderson, 81 S.W. 787; Burditt v. Swenson, 67 Am. Dec. 665; Thornton v. Dow, 111 Pac. 903, 32 L.R.A. (N.S.) 968; New Orleans v. Lenfant, 52 So. 577, 29 L.R.A. (N.S.) 642. Legislative authority to do a thing will not protect the defendant when it commits a nuisance. Clark v. Mayer, 13 Barb. 32; People v. Gas Light Co., 64 Barb. 55; Reg v. Bradford, 6 B. & S. 631. The one act of defendant created a nuisance and it is not even necessary to allege negligence. Jackson v. Fire Brick Co., 219 Mo. App. 689. (2) The Constitutions of the United States and of the State of Missouri were made to preserve life and property and such rights cannot be taken away. The plaintiff had a right to drive his auto down the street. He was fully complying with the ordinance of the city. The defendant violated that ordinance and invaded the place of safety fixed by it for plaintiff, wounded the plaintiff and destroyed his property. Surely he must have some remedy at law. The conduct of the defendant was in direct violation of Article V, Amendments to the Constitution of the United States: "No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation." And in violation of Sec. 30, Art. II, Constitution of Missouri: "No person shall be deprived of life, liberty or property, without due process of law." And in violation of Sec. 1, Art. XV, Amendments to the Constitution of the United States: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law." Under the facts of this case and under the constitutions as quoted the doctrine heretofore laid down in such cases as: Heller v. Sedalia, 53 Mo. 159; McKenna v. St. Louis, 6 Mo. App. 322; Healy v. Kansas City, 277 Mo. 618, does not apply. (3) In his motion for a new trial plaintiff filed five affidavits of well known citizens, showing newly discovered evidence and that the fire trucks were in the habit of running from 30 to 46 miles an hour in going to fires. The court erred in not granting a new trial, for that reason alone, because its discretion was unwisely exercised. Schmitt v. Railway Co., 160 Mo. 55; Folding Bed Co. v. Railroad, 148 Mo. 478; Culbertson v. Hill, 187 Mo. 563. While granting a new trial is frequently in the discretion of the trial court, that discretion is not an unlimited one. Devine v. Wells, 300 Mo. 187.
Fred B. Hulse, Rendlen, White & Rendlen and D.M. Stout for respondent.
(1) The action of the trial court in giving defendant's instruction in the nature of a demurrer to plaintiff's evidence at the close of plaintiff's case and in directing a verdict for defendant was proper, and fully sustained in law. McKenna v. St. Louis, 6 Mo. App. 320; Heller v. Sedalia, 53 Mo. 159; Dillon's Mun. Corps. (4 Ed.) p. 1198, par. 976; 5 McQuillin Mun. Corps. (1913), p. 5068, sec. 2432; White on Negligence of Mun. Corps. (1920) p. 66; Hawkins v. Springfield, 194 Mo. App. 159, 186 S.W. 576; Healy v. Kansas City, 277 Mo. 626, 211 S.W. 60; Michael v. Railroad, 161 Mo. App. 62; Stater v. Joplin, 189 Mo. App. 383; Trower v. Louisiana, 198 Mo. App. 352, 200 S.W. 763; 43 C.J. 968. The foregoing cases we believe are sufficient authority on the point. However, it is of interest to note how universal the rule is, and at the risk of being tedious we have compiled authorities from jurisdictions outside Missouri, so that if one should care to pursue the matter further he will find ample additional support in the following cases, which, we assure, are directly in point. A detailed review of the facts and opinions would be only to reiterate the cases hereinafter reviewed from Missouri. Hall v. City of Jackson, 30 Fed. (2d) 935; Long v. Birmingham, 49 So. 881, 161 Ala. 427; Vezina v. City of Hartford, 138 Atl. 145, 106 Conn. 378; Hammond v. Atlanta, 103 S.E. 39, 25 Ga. App. 259; Hazel v. City of Owensboro, 99 S.W. 315, 30 Ky. L.R. 627; Bd. of Councilmen of City of Frankfort v. Bowens, 265 S.W. 785, 205 Ky. 314; Perez v. Honolulu, 29 Haw. 656; Bradley v. Oskaloosa, 188 N.W. 896, 193 Iowa, 1072; Adams v. Selectmen of the Town of Northbridge, 149 N.E. 152, 253 Mass. 408; Miller v. Minneapolis, 77 N.W. 788; Powell v. Village of Fenton, 214 N.W. 968; Gaetjens v. New York, 116 N.Y. Supp. 759; City of Patterson v. Era Railroad Co., 75 Atl. 922; Mabe v. Winston-Salem, 130 S.E. 169; Johnston v. City of Grants Pass, 251 Pac. 713; Frederick v. City of Columbus, 51 N.E. 35; Barnes v. Waco, 262 S.W. 1081; Cunningham v. Seattle, 82 Pac. 143; Hall v. City of Jackson, 30 Fed. (2d) 935, U.S.C.C.A., 5th circuit. The vehicles of the fire department are exempt from both the state and municipal laws governing traffic. Sec. 7551, R.S. 1919 . Ordinance No. 18 of the City of Hannibal, Sec. 11 set out in the pleadings. Section 7 of Ordinance 18 of the City of Hannibal set out in the pleadings. Hogan v. Fleming, 265 S.W. 879; Michael v. Railroad, 161 Mo. App. 62. (2) As to appellant's point II — the constitutional questions: These matters, not being presented in the motion for new trial, are not properly preserved in the case, and hence are not reviewable by this court. Greer v. Carpenter, 19 S.W. (2d) 1046; Rothschild v. Barck, 26 S.W. (2d) 763; Brackett v. James Black, etc., 32 S.W. (2d) 292; Williams v. Jenkins, 32 S.W. (2d) 580; The above cases are not yet officially reported. Maplegreen Co. v. Trust Co., 237 Mo. 363; Macon County Levy Dist. v. Goodson, 14 S.W. (2d) 561. Not yet in official reports. But even though the constitutional questions had been kept alive in the trial court by motion for new trial they would be deemed to have been abandoned in this court under rule 15. Hartzler v. Met. St. Ry. Co., 218 Mo. 565. (3) It was not error for the trial court to deny appellant's motion for new trial based on newly discovered evidence; there was no abuse of the trial court's discretion in such denial. Hanley v. Blanton, 1 Mo. 49; Sang v. St. Louis, 262 Mo. 464; Mahany v. K.C. Rys. Co., 228 S.W. 825. Instead of appellant being diligent in respect to this motion for a new trial, there is a showing of such negligence as to defeat plaintiff's right to a new trial. Cook v. Railroad Co., 56 Mo. 382; The Mayor of Liberty v. Burns, 114 Mo. 433; Fretwell v. Laffoon, 77 Mo. 26; It was a lack of diligence for plaintiff not to ask for a continuance of the case. James v. Mut. Res. Fund Life Assn., 148 Mo. 18. And cases cited above under this point. The effect of said motion would be to change the theory of the case as tried below; appellant must try his case here no the same theory that it was tried there. Snyder v. Am. Car & Foundry Co., 14 S.W. (2d) 606. (Not officially reported.)
In this action plaintiff asks to recover ten thousand nine hundred fifty dollars ($10,950), for adamages alleged to have been sustained, by plaintiff, as the result of a collision of a fire department motor, hook and ladder truck, belonging to the city of Hannibal, Missouri, with plaintiff's car, while plaintiff's car was parked on the south side of Broadway in the city of Hannibal. In the trial and at the close of plaintiff's case the court directed a verdict for the defendant city. Plaintiff, being unsuccessful in his motion for a new trial, appealed to this court.
Plaintiff in his petition charges in part as follows:
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