Smith v. Hayti

• Decision Date: 14 April 1908
• Parties: SMITH, Respondent, v. HAYTI, Appellant
• Court: Missouri Court of Appeals

109 S.W. 817

130 Mo.App. 321

SMITH, Respondent, v. HAYTI, Appellant

Court of Appeals of Missouri, St. Louis

April 14, 1908

Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.

AFFIRMED.

Judgment affirmed.

S. J Jeffress for appellant.

Van Mayes and Duncan & Bragg for respondent.

OPINION

GOODE, J.

--This appellant has not set forth in its statement any of the facts in proof, and though it assigns for error the admission of incompetent evidence, has failed to state such evidence. We might dismiss the appeal for non-compliance with our rules but will consider the main proposition relied on for a reversal of the judgment. The action was instituted to recover for damage done to a team, buggy and harness by driving them into a ditch across a public street in the city of Hayti. The ditch ran across Jasper street, a north and south thoroughfare intersected by Carmine street running east and west. We understand from the testimony in the record that the ditch was dug along the south side of Carmine street and extended across Jasper street at the crossing of the two streets. We are not quite certain of the location of the ditch, because the witnesses had a plat before them while testifying to which they continually referred without naming the streets, and this plat is not in the record. Jasper street is fifty feet wide, a strip on either side being occupied by a sidewalk, or intended for use as a sidewalk. The driveway principally used was a strip twenty feet wide in the center of the street, and just before the accident occurred, a bridge of the width of this central strip, had been built over the ditch. A strip five and a half or six feet wide extended from the bridge to the sidewalk on the west side of Jasper street, and across this strip the ditch extended as an open excavation, unguarded by barriers or in any other mode to protect the traveling public. Plaintiff who keeps a livery stable, had hired a team to a young man to go to Caruthersville, another town in the same county. The hirer returned to Hayti late in the night, driving southward on Jasper street. As it had been raining and the night was very dark, he was compelled to guide himself along the street as best he could by the bulk of the houses on either side. When he reached Carmine street, still going southward, he missed the bridge and the team and buggy went into the ditch, an excavation three and a half feet deep and two and a half feet wide. The team was traveling in a walk at the time, and the evidence proves the driver was using care to avoid an accident. No lights were about the bridge or the excavation to indicate to the driver the proper course or warn him of danger. The main proposition invoked by appellant's counsel is that, because the bridge was as wide as the portion of Jasper street which had been improved for a driveway more than the remainder of the street between the sidewalks, the city is not responsible for the accident, which occurred from the team and vehicle going outside said driveway. Absolute non-liability on the part of the city is asserted, and the argument urged that the city did its whole duty by improving a portion of the street sufficient to accommodate the usual quantity of travel by horses and vehicles. In support of this...