Russell v. Inhabitants of Columbia

Decision Date31 October 1881
Citation74 Mo. 480
PartiesRUSSELL v. THE INHABITANTS OF THE TOWN OF COLUMBIA, Appellant.
CourtMissouri Supreme Court

Appeal from Audrain Circuit Court.--HON. G. PORTER, Judge.

AFFIRMED.

Overall & Judson for appellant.

If the ground of this action was positive misfeasance on the part of the corporation, its officers or servants in doing an act which caused the street to be in a dangerous condition, no other notice to the corporation of the condition of the street would be essential to its liability, and the action of the court in leaving out of consideration the question of notice would not be error. But if plaintiff had a right of action upon the ground of the alleged neglect of the corporation to put the street in repair or to remedy the cause of danger occasioned by the wrongful act of the gas company in making an excavation in defendant's street and leaving it open at night, without placing lights near to notify persons passing of the danger, notice to the defendant of the condition of the street, and the failure of the gas company to have out signal lights or such a state of facts as gave to the jury the right to infer notice, was necessary to give plaintiff a right of action against the defendant. Dillon Munic. Corp., (3 Ed.) § 1020, and cases cited; Bassett v. St. Joseph, 53 Mo. 290; Oliver v. City of Kansas, 69 Mo. 79; Beaudean v. Cape Girardeau, 71 Mo. 392. The gas company was not the servant or agent of defendant, and hence the rule respondeat superior does not apply, and the company, not the town, is alone responsible to plaintiff for injuries suffered by her by reason of the neglect or misfeasance of the company. 17 Mo. 121; 40 Mo. 569; Schweickhardt v. St. Louis, 2 Mo. App. 571; Morgan v. Bowman, 22 Mo. 538; Kelly v. The Mayor, 11 N. Y. 432; Maxmilian v. The Mayor, 62 N. Y. 160; s. c., 20 Am. Rep. 468. The same rule applies where a statute is first to be accepted by the city council as where it is imposed without assent. Fisher v. Boston, 104 Mass. 87; s. c., 6 Am. Rep. 196. In the case at bar defendant had done all it could do. It had passed an ordinance requiring the gas company in laying its pipes to “leave the streets in good condition; the ditches not to be left open any longer than is necessary to lay or repair pipes.” Besides, the gas company was not acting under defendant's authority in excavating in the street and laying its pipes. Public highways and streets are not the property of the particular listrict or city, but the property of the State, subject alone to its disposal. Lackland v. R. R. Co., 31 Mo. 180. The right to lay the pipes is derived from the State, (R. S. 1879, § 951,) and the “consent of the municipal authorities” simply means that the necessity for supplying gas by such means shall first be determined by the municipality. The necessity for supplying gas by this means having been found to exist, the municipality may direct the manner in which the work shall be done, not upon such terms and conditions as the authorities may wish, but only by “reasonable regulations,” and any unreasonable regulations would be wholly void and could be disregarded by the gas company. The proper light in which to regard the matter is to consider the grantee of the franchise from the State, in laying its pipes in the streets, as representing the government, and the government as acting under its right of eminent domain.

Wm. J. Howell with Gordon, McIntyre & Kennan also for appellant.

The gas company was not the agent or servant of defendant; was responsible for its own wrongful acts, and the town was not liable, if at all, for injuries to persons occasioned by obstructions or trenches made and left open by the company without notice thereof to the town authorities. 2 Dillon Munic. Corp., (2 Ed.) § 790; Hart v. Brooklyn, 36 Barb. 226; s. c., 1 Am. Law Reg., (N. S.) 631; 17 Mo. 121; 53 Mo. 290; 69 Mo. 79; 71 Mo. 392. The basis of this action is negligence on the part of the town, and care and freedom from negligence by plaintiff. 2 Dillon Munic. Corp., § 790. Therefore notice should have been shown, and failure to remedy defect, to authorize recovery. The fifth instruction gives to the jury too broad a range in assessing damages, particularly on what they might conjecture the future would develop.

Guitar & Douglass and Macfarlane & Trimble for respondent.

The defendant, having full power and control over its streets, was bound to keep them in a proper state of repair, free from obstructions, so that they would be reasonably safe for travel in the usual modes, and a neglect on its part to do so would render it liable to one injured by reason of such neglect. Duty in this respect could not be evaded, suspended or cast upon others, by any act of its own, and defendant could not avoid its responsibility by any arrangement with another Therefore, the ordinance of defendant, requiring the gas company to leave the streets in good condition, and providing that the ditches should not be left open longer than was necessary to lay or repair pipes, did not relieve the defendant from its liability to respondent for injuries received by reason of said gas company having its ditches open contrary to the requirement of said ordinance. 2 Dillon Munic. Corp., (2 Ed.) § § 789, 791; 40 Mo. 569; Smith v. St. Joseph, 45 Mo. 449; Bowie v. Kansas City, 51 Mo. 454; 71 Mo. 395; Fink v. St. Louis, 71 Mo. 52; Ward v. Jefferson, 24 Wis. 342; 17 N. Y. 104. The gas company may not be the servant or agent of the defendant, neither was it a contractor under the defendant to do a necessary public work, but it was a licensed wrongdoer. One who authorizes the doing of a wrongful act is a party to it, and the act of the trespasser will be his act. It may be that the town would have authority to provide for lighting its streets with gas, which might necessitate the digging of trenches in its streets, but, it is under the more imperative obligation of keeping its streets in a safe condition, and failing to do so, it should not be allowed to fall back on the negligence of the parties doing the work and thus obtaining a reward for its own want of care and attention. Hence, it should make no difference whether the gas company or those employed by it were or were not negligent in doing the work. The negligence of defendant, for which it was charged, was in authorizing the work and in failing to see that travel on the streets was not injured or rendered dangerous. Dillon Munic. Corp., (2 Ed.) § 796. Notice and a reasonable time to repair are required in cases in which the defect is caused by the unauthorized act of third persons, or by some sudden or unforeseen cause, such as a storm; but when the defect is the result of the act of the corporation itself or of others acting under its authority, notice is not required or will be implied. Requa v. Rochester, 45 N. Y. 135; McCarthy v. Syracuse, 46 N. Y. 197; Hume v. Mayor, 47 N. Y. 646; Market v. St. Louis, 56 Mo. 190; 53 Mo. 290; Dillon Munic. Corp., (2 Ed.) §§ 789 to 792. Under the facts and circumstances shown in evidence in this case, notice to defendant would be implied. The trench was suffered to remain open for four days in the principal street, near the center of the town.

HENRY, J.

This suit was instituted in the Boone circuit court by plaintiff to recover damages for an injury sustained by her from falling into a ditch made by The Columbia Gas & Coke Company, along Broadway street in said town and on a bridge in said street.

The accident occurred on the bridge on the night of August 13th, 1876, as plaintiff was returning from church with her escort. The ditch, or trench, for about fifteen feet east of the bridge and on the bridge, was left open from the 11th to the 14th of August, and witnesses for defendant testified that on the night of the 13th, as on previous nights, a red light was placed about twenty feet east of the bridge, and that it remained there lighted until the morning of the 14th. There was testimony for plaintiff to show the contrary. The plaintiff resided with her father southwest of the bridge; one witness says 150 feet, another 150 yards, and a third from 280 to 290 feet; but whatever the distance may be, there is no question that the bridge could be seen from Col. Russell's residence, and probably also the trench on the bridge; but plaintiff testified that she never saw the trench on the bridge, although she saw the gas company digging the trench in Broadway street. She started alone to the Episcopal church, east of the bridge on Broadway on the night of the 13th, about, or a little after dusk, and fell in company with the rector and his wife at the bridge; but says she was engaged in conversation with them and did not see the trench. It was a dark night, and returning from church, between ten and eleven o'clock, the accident occurred

The Columbia Gas & Coke Company was organized under the 7th article of the general corporation law, by the 14th section of which any corporation formed under that article, for the purpose of supplying any city, town or village with gas, * * has the power to lay conductors for conveying gas through the streets * * of any such city, town or village, with the consent of the municipal authorities thereof, and under such reasonable regulations as the authorities may prescribe. Wag. Stat., p. 336. The town of Columbia passed an ordinance giving to said Gas & Coke Company the right to lay gas pipes along any street or alley, provided the same shall be left in good condition and the ditches not be left open any longer than necessary to lay or repair pipes. On the 21st day of November, 1872, the said company, in writing, accepted the rights, etc., granted by said ordinance.

The injury to plaintiff was a sprain of the ankle, and was a serious and painful affliction, confining plaintiff to the house from August to November. There was evidence tending to prove that the sprain was improperly treated by the physicians, and was, in...

To continue reading

Request your trial
182 cases
  • Montain v. City of Fargo
    • United States
    • United States State Supreme Court of North Dakota
    • November 27, 1917
    ...... 35 Iowa 495, 14 Am. Rep. 499; Eastman v. Meredith, . 36 N.H. 284, 72 Am. Dec. 302; Russell v. Tacoma, 8. Wash. 156, 40 Am. St. Rep. 895, 35 P. 605; Kies v. Erie, 135 Pa. 144, 20 Am. St. ...Rep. 90; Blake v. St. Louis, 40 Mo. 569; Welsh v. St. Louis, 73 Mo. 71; Russell v. Columbia, 74 Mo. 480, 41 Am. Rep. 325; Davis v. Omaha, 47 Neb. 836, 66 N.W. 859; Beatrice v. Reid, 41 ... would tend to interfere with the comfort of the inhabitants. of the municipality, or which could in any manner be. offensive to the inhabitants of such ......
  • Oglesby v. Missouri Pacific Railway Company
    • United States
    • United States State Supreme Court of Missouri
    • May 30, 1899
    ...error in giving plaintiff's instruction on the measure of damages. The instruction is drawn from one approved by this court in Russell v. Columbia, 74 Mo. 480. That has been often cited and followed and instructions in substance the same many times approved. Gorham v. Railroad, 113 Mo. 408;......
  • Strother v. Kansas City
    • United States
    • United States State Supreme Court of Missouri
    • April 8, 1927
    ...... Mo. 102; Beaudean v. Cape Girardeau, 71 Mo. 392;. Welsh v. St. Louis, 73 Mo. 71; Russell v. Columbia, 74 Mo. 480; Loewer v. Sedalia, 77 Mo. 431; Jordan v. Hannibal, 87 Mo. 673; ......
  • Gerber v. City of Kansas City
    • United States
    • United States State Supreme Court of Missouri
    • June 10, 1924
    ...... ditch by a house-building contractor. In Russell . [304 Mo. 191] v. Columbia, 74 Mo. 480, the plaintiff. fell into a ditch made by the local gas ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT