Schlinski v. City of St. Joseph

• Decision Date: 05 May 1913
• Parties: JOHN M. SCHLINSKI, Respondent, v. CITY OF ST. JOSEPH AND METROPOLITAN PAVING CO., Appellants
• Court: Kansas Court of Appeals

156 S.W. 823

170 Mo.App. 380

JOHN M. SCHLINSKI, Respondent, v. CITY OF ST. JOSEPH AND METROPOLITAN PAVING CO., Appellants

Court of Appeals of Missouri, Kansas City

May 5, 1913

Appeal from Buchanan Circuit Court.--Hon. W. D. Rusk, Judge.

Judgment affirmed.

W. B Norris, O. E. Shultz, P. A. Slattery, O. C. Mosman and Vinton Pike for appellant.

(1) Plaintiff's own negligence contributed to the injury he complains of. It was the sole cause of his fall. The jury should have been instructed to return a verdict for defendants. McHugh v. Paving Co., 106 N.Y.S. 165; Steinbrenner v. Forney, 127 N.Y.S. 623; Hunter v. Montesana, 111 P. 571; Compton v. Revere, 179 Mass. 413. (2) When the obstruction created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor, the employer (defendant city) is not liable. Shute v. Town of Princeton, 59 N.W. 1050; City of Independence v. Slack, 134 Mo. 66; Press v Penney, 242 Mo. 98, 145 S.W. 458; O'Hara v. Gas Light Co., 148 S.W. 884; McGratte v. St. Louis, 215 Mo 209.

Monte H. Craig and C. A. Mosman for respondent.

A city owns and controls its streets as a trustee for the public. It, therefore, stands charged by the law with the primary and bounden duty of keeping them free from nuisances, defects and obstructions caused by itself or by third parties if it (in the latter instance) had actual or constructive notice in time to abate the nuisance, remove the obstruction, or repair the defect. It cannot shirk that duty or shift it over to others, or halve it with others; so much is clear law in Missouri. Welsh v. City, 73 Mo. 71; Oliver v. Kansas City, 69 Mo. 83; Carrington v. St. Louis, 89 Mo. 208; Russell v. Columbia, 74 Mo. 480; Beaudeau v. Cape Girardeau, 71 Mo. 395; Streeter v. Breckenridge, 23 Mo.App. 250; Hill v. Sedalia, 64 Mo.App. 501; Benton v. St. Louis, 217 Mo. 700.

OPINION

TRIMBLE, J.

--The defendant city of St. Joseph authorized the paving of Harvard street, a much traveled thoroughfare of that municipality, and entered into a contract with its codefendant, the Metropolitan Paving Company, to do the work. During the progress of the improvement plaintiff, in walking along the street at night, fell over certain obstructions placed there by the paving company and was injured. He sues charging negligence on the part of both defendants in failing to place barriers so as to warn travellers of such obstructions and in failing to light said street or to place red lights or danger signals at the place where said obstructions were located.

Plaintiff had lately moved into his residence on the south side of Harvard street, being the second house east of an alley running north and south and crossing said street at right angles. The house and lot between plaintiff and the alley were owned and occupied by a man named Swearingen. A tar boiler used by the paving company was standing some ten feet or more from the curb out in Harvard street; about opposite the corner formed by the east side of the alley and the south side of Harvard street. In the alley and south of the sidewalk on the south side of Harvard street was a tar kettle used by the paving company. This kettle was not far from the west line of the Swearingen lot. At the corner formed by the west line of the alley and the south line of Harvard street a red light danger signal hung over the sidewalk. In the center of Harvard street and on a line with the east line of plaintiff's lot, if prolonged to the center of the street, hung a city electric arc lamp, but it was not lighted on the night of the injury. There was no other city lamp in that vicinity and no red light at or near the tar boiler or barrels sitting there. These barrels, twelve or fifteen in number, were empty and piled upon the walk east of the alley, while west of the alley was a sewer inlet, the top of which had been removed to raise it to the grade, as the contractor had agreed to do, leaving a hole; and a large pile of dirt lay on the sidewalk at that point. From the edge of the tar boiler down to the gutter surface there were two planks side by side, the ends of which rested against the curb. The contract for the improvement contemplated the use of the street by the public during the progress of the work. The work on the street commenced somewhere about the latter part of September and the first work done was the laying of the cement sidewalks which were finished and had been thrown open to and used by the public. Plaintiff's fall occurred on the night of November 8, 1911.

Prior to the injury and during the progress of the work, the street had been torn up and in a rough condition. But at the time of plaintiff's fall such progress had been made that while the street was not yet finished, yet this rough condition no longer existed and it was used by pedestrians and to some extent by teams. The surface of the street was covered evenly with crushed rock of small size, such as are commonly used for the top course in a macadamized street, and there was no more danger in walking on the street where plaintiff was hurt than on any other freshly macadamized roadway, if it had not been for the tar boiler and the plank extending from its top down to the surface of the gutter against the curb.

On the night of the injury plaintiff left his residence and went to the sidewalk in front of his house. From thence he proceeded west along the sidewalk until he noticed the red light hanging over the sidewalk, at the place hereinbefore indicated, and saw that there was some kind of an obstruction there. Being thus notified of danger on the sidewalk and seeing no danger signals out in the street, and not knowing of the tar boiler and planks extending therefrom, he turned off the sidewalk out into the street and proceeded on his way west to get by the obstruction and red light on the sidewalk. It was dark and the tar boiler and planks could not be seen. He had proceeded but a little way when his ankles struck these planks leading from the tar boiler, and he was thrown heavily to the pavement injuring his shoulder in a way to cause him considerable pain and rendering him unable to use his arm, to perform manual labor or to button his clothes. The doctor testified that in his opinion it would get well in about five or six months. The jury returned a verdict for $ 500. Defendants appealed.

There was introduced in evidence a city ordinance requiring every person having the use of any portion of a street or sidewalk for any purpose to place red lights in a conspicuous place in front of such obstructions from sunset until sunrise each night during the time such obstruction remains. And the contract between the city and the paving company required the latter to obey all ordinances in relation to maintaining signals as to obstructions in the street, to keep open passageways, and to save the city harmless from all suits in consequence of any negligence in guarding such obstructions.

It is urged that plaintiff was guilty of contributory negligence as matter of law, and that the demurrer to the evidence should have been sustained.

It was not shown that plaintiff knew the tar boiler and planks were there or that any obstructions were out in the street. True, he knew, in a general way, that men were working on Harvard street, had seen teams hauling rock on the street but he knew little about the work and thought they were doing some repair work; he never went to see. In going to and from the packing house where he worked he went by way of the alley in the rear of his property which was the shortest route. He had never seen the tar boiler nor the planks before and did not know the men were using them. He denied positively that he knew the obstructions were there, and knowledge of their existence could not be imputed or attributed to him in the face of such denial. [Roberts v. Piedmont, 148 S.W. 119.] It must be borne in mind that it was not a torn up condition of the street, or a hole or other irregularities in the surface of the street, inevitable concomitants of the work, that caused the injury. But it was these planks left in a sloping position above the surface and crosswise of the street that caused his injury. Knowledge of these was not shown and cannot be imputed to plaintiff. [Russell v. Columbia, 74 Mo. 480; Wiggin v. St. Louis, 135 Mo. 558, 37 S.W. 528, l. c. 564, 565.]

Nor can it be said that plaintiff was...