Shafir v. Carroll

• Decision Date: 23 May 1925
• Docket Number: No. 24712.,24712.
• Citation: 274 S.W. 755
• Parties: SHAFIR v. CARROLL et al.
• Court: Missouri Supreme Court

274 S.W. 755

SHAFIR v. CARROLL et al.

No. 24712.

Supreme Court of Missouri, in Banc.

May 23, 1925.

Rehearing Denied July 3, 1925.

Appeal from Circuit Court, Jackson County; James H. Austin, Judge.

Action by Joe Shafir against Martin Carroll and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Ordinance 38919, § 217, was as follows:

"No person, firm, or corporation shall use any portion of the street for the erection or repair of a building upon the land abutting thereon until a permit therefor shall have been obtained from the superintendent of buildings. Such permit may be granted for such period of time and under such limitations and restrictions as may be required by ordinance or by public convenience, and may be revoked by the superintendent at any time when the holder thereof fails to comply with any rule or regulation under which it was granted or when in the opinion of said superintendent the public good requires such revocation. No part of a street other than that so allotted shall be used for depositing materials for work to be done or for receiving rubbish arising from such work, and all such rubbish shall be carried away by the holder of the permit at such convenient times as said superintendent may direct, and in case said holder shall neglect or refuse to remove such rubbish it shall be removed by the superintendent at the expense of the said holder or upon order of the board of public works. * * * The person to whom such permit is granted shall also be required to erect and maintain, during the said occupancy of the public streets, a way for the use of foot passengers at such time and in such manner as the said superintendent may direct."

McCune, Caldwell & Downing, of Kansas City, for appellant Carroll.

John B. Pew, City Counselor, and John D. Wendorff, both of Kansas City, for appellant Kansas City.

T. J. Madden, Achtenberg & Rosenberg, Darius A. Brown, and John G. Park, all of Kansas City, for respondent.

Statement.

WOODSON, J.

This case is a companion case of Shafir v. Martin Carroll, Kansas City et al., 274 S. W. 755, which grew out of the same tragedy that is mentioned in the case of Lindman v. Kansas City (No. 24005) 271 S. W. 516, decided at this term of court. While Carroll was a codefendant in the case with Kansas City, and both cases tried together in the circuit court, yet there were separate appeals taken by each of said defendants. I refer to the case of Lindman v. Kansas City et al. (No. 24005) 271 S. W. 516, decided at this term of said court, which also grew out of the same catastrophe, at the same time and produced by the same causes as this injury was caused, where the curious may find a brief statement of the allegations of the petition, and substantial statement of the facts of the case as shown by the evidence.

The principles of law applicable to the case are there also fully discussed and decided, with the exception of some additional questions presented and argued by counsel for appellant Carroll.

Opinion.

I. Counsel for appellant first contends that the trial court erred in admitting section 217 of Ordinance 38919; in refusing to strike said section from the evidence; in refusing to give defendant Carroll's instruction 10, and in giving plaintiff's instruction 1, because said section 217 did not require the erection of a temporary walk for the use of pedestrians, the same not having been directed by the superintendent of buildings.

All of this group of contentions are directed at the admission of section 217 of Ordinance No. 38919 of the contended legal effect of instruction No. 1 given for the respondent, and the action of the court in refusing to give instruction No. 10 for the appellant.

In my opinion there is no merit in these contentions, and my reason for so saying is twofold; (1) It was the duty of the city and Carroll to exercise ordinary care to preserve the sidewalk in a reasonably safe condition for travel, and thereby maintain a separation of pedestrians and vehicles, which are more or less dangerous when they mingle with pedestrians. That is the very purpose of constructing sidewalks for pedestrians, and constructing the driveways for the vehicles of all kinds.

This was the primary and nondelegable duty of the city. This failure of a division of the different kinds of traffic, or rather the destruction of such division and throwing both into hodgepodge was the primary and direct cause of the injury in all of these cases, and when Carroll assisted in creating that condition, he became a joint tort-feasor with the city.

There is nothing new or extraordinary in this class of cases. They involve ordinary common-law negligence. Ordinary common observation teaches us that when the sidewalk in a populous city is destroyed and the place where it was located is obstructed by building or other materials, the pedestrians in order to pass around such materials will walk out into the driveway of the street, and thereby expose themselves to the dangers of being struck by passing vehicles. While it was negligence on the part of the defendants...