Sprague v. City of St. Louis

• Decision Date: 31 May 1913
• Citation: 158 S.W. 16
• Parties: SPRAGUE v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

158 S.W. 16

SPRAGUE v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

Rehearing Denied June 28, 1913.

1. MUNICIPAL CORPORATIONS (§ 762)—OBSTRUCTIONS ON SIDEWALKS — ACTS OF CITY OFFICERS.

While the city is not liable for the negligent acts of its officers in flushing out its sewers, it is liable if it fails to exercise reasonable care to keep its streets in a safe condition for travel, even though the defect be caused by the flushing of the sewers.

2. MUNICIPAL CORPORATIONS (§ 777) — DEFECTIVE SIDEWALKS—TEMPORARY OBSTRUCTIONS.

The temporary laying of a hose along the edge of the sidewalk, not at a regular crossing, for the purpose of flushing a sewer is not such negligence in the care of the streets as to render the city liable for injuries received by one who stumbled over the hose and fell into the street while stepping from the walk to take a street car.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Henry C. Sprague against the City of St. Louis. Judgment for the defendant, and plaintiff appeals. Affirmed.

Jones, Jones, Hocker & Davis and Thos. H. Sprinkle, all of St. Louis, for appellant. Lambert E. Walther and Robert Burkham, both of St. Louis, for respondent.

BROWN, C.

This is an action for damages on account of personal injuries suffered by plaintiff on July 24, 1907, by falling over a hose on Broadway near Locust street in the city of St. Louis. The hose was placed there by the employés of the sewer department of the city. At the close of the plaintiff's case the court instructed the jury to find for the defendant.

Broadway, a street running north and south, is intersected by Locust street, which runs east and west. This locality was, at the time of the accident, one of the busy retail districts in the city. At the southwest corner is the Mercantile Library building, the first, second, and third floors of which was occupied by the Scruggs-Vandervoort-Barney Dry Goods Company. The Broadway cars run along that street, and the Olive street cars come west on Locust street and run south past this block to Olive street. These lines transfer at that corner. The sidewalk along Broadway at that point is about 15 feet wide, constructed of concrete. The curb stands about 10 inches above the gutter.

At the southwest corner of Broadway and Locust streets there were two inlets connecting with the sewer which were required by the board of health to be flushed from time to time through these openings to keep the sediment from accumulating to such an extent as to overflow them. The necessity for this work is expressly admitted in the record. In the west side of Broadway, immediately inside the curb, and about 120 feet south of the south property line of Locust street, was a fire plug from which the water was taken by a 2¼-inch hose 3 inches in external diameter, to the sewer openings referred to, for flushing purposes. Whenever this work was done the hose was attached to the plug and laid along the edge of the walk, about 10 inches from the curb, to the corner where the stream was run into the sewer. The hose was always laid in this position to protect it from being trampled and run over by vehicles which were not only liable to injure it but also to injure people who might be near it. The flushing of the sewer at this point occupied about 20 minutes and was in progress and nearly finished at about 11 o'clock a. m. July 24, 1907, a clear day with the thermometer standing at about 90 degrees, when Mr. Sprague got off the Broadway car at the corner for the purpose of transferring to an Olive street car. He walked south, he thinks, about 35 feet, until he came to a place in front of the Scruggs store, where there was about two feet and a half of shade, and stood there waiting for his car going south. He does not remember stepping over the hose when he got off the car, although if it were laid at the time he could not have reached the place where he waited without doing so; nor did he see anybody laying the hose. In fact, he was oblivious that there was any such thing in...