Starkey v. City of Greenville

• Citation: 175 S.W. 314,189 Mo. App. 352
• Decision Date: 03 April 1915
• Docket Number: No. 1412.,1412.
• Parties: STARKEY v. CITY OF GREENVILLE.
• Court: Court of Appeal of Missouri (US)

175 S.W. 314

189 Mo. A. 352

STARKEY v. CITY OF GREENVILLE.

No. 1412.

Springfield Court of Appeals. Missouri.

April 3, 1915.

Appeal from Circuit Court, Wayne County; E. M. Dearing, Judge.

Action by John Starkey against the City of Greenville. From a judgment for plaintiff, defendant appeals. Reversed.

V. V. Ing, of Greenville, for appellant. Munger & Wise, of Piedmont, for respondent.

FARRINGTON, J.

The plaintiff recovered a judgment for $175 as damages for the death of his horse caused by an injury received on Race street, a thoroughfare within the limits and under the control of the defendant, a city of the fourth class having a. population of a little less than 1,000, according to the government census reports of 1910.

The petition contained the following allegation:

"Plaintiff further states that the defendant city, through its officers and employes, on the 3d day of February, 1914, and for a long time prior thereto, negligently and carelessly permitted said street along and near the property of this plaintiff to become infested, burdened, and covered with planks, sticks, timber, and other debris to such an extent that it became dangerous to travel both by pedestrians and horses, and that this defendant had full and complete knowledge of the accumulation of the timber, boards, planks, and sticks which had from time to time for many months accumulee ed in said street, and that it negligently faileo and refused to remove such danger from said street until after the 3d day of February, 1914."

This is followed by an allegation of ownership of the horse, and that on the 3d day of February, 1914, while driving on said street along and adjoining plaintiff's property, and while turning from said street to go into his lot, his horse stepped on the end of an oak stick which was sharp at one end, and which was about four feet long and probably an inch or an inch and a quarter in diameter, causing the other end to fly up to and against the belly of the horse near his flank, penetrating the body several inches, and resulting in his death. The answer was a general denial coupled with a plea of contributory negligence.

Over the objection and exception of the defendant, the case was submitted to the jury on instructions predicating liability for negligence on the part of the defendant under the facts proven.

In view of the fact that we find that the evidence falls short of making out a case of negligence on the part of the city, it is but fair to the respondent that we set forth the facts in their most favorable aspect to him, aided by every reasonable inference that can be drawn therefrom to sustain his judgment. That plaintiff's horse was killed as alleged and that at the time of the injury plaintiff was in the lawful use of the highway is admitted. That the defendant city owed him the duty to use ordinary care in keeping the street reasonably safe for travel cannot be denied.

The evidence shows that at times when the street was muddy planks and sticks would be thrown in and across the same by persons desiring to cross, and that much rubbish, trash, and many planks and sticks were in the roadway and street, and had been for some time, and that the city had not removed or cleared away such obstructions. It is also shown that the four-foot stick that did the damage had been in the street where the injury occurred for about three weeks before it happened. While it is not true that any of the city officials had actual knowledge of the condition of this street, still, from the length of time that this and other sticks remained in the street at this place, plaintiff is entitled to the inference that they had knowledge of such condition.

To make the issue plain: Can a city of less than 1,000 inhabitants be held liable for negligently injuring plaintiff's horse in the manner shown if its officers and agents intrusted with the duty of keeping the street in reasonably safe repair for travel actually saw a stick some four feet long, sharp at one end, of about an inch or an inch and a quarter in diameter, in the roadway, where the surface of the street was earth, and along which there was ordinary travel by wagons and other vehicles, including log and lumber and tie wagons? In other words: Would a reasonably prudent, careful, and intelligent person anticipate any danger to horses being driven along and over such street by failing to remove such stick? We answer, "No," and hold that the answer is one about which reasonable men cannot differ.

It is a well-established rule of law which applies to cases of this character—and it is expressed by this court in the case of Wilt v. Coughlin, 176 Mo. App. 275, 161 S. W. 888—that, in order for a plaintiff to recover for a negligent act, he must show that the injury which he sustained is one that would probably flow from such negligent act, and that it is one which a reasonably prudent and intelligent person would anticipate as a natural and probable result. And in the Wilt Case a number of leading cases on the subject are cited. See, also, 1 Thompson, Commentaries on the Law of Negligence, § 50; 29 Cyc. 492 to 495; 1 Shearman & Redfield on the Law of Negligence (6th Ed.) §§ 28, 29.

As applied to actions for negligence of this character against municipal corporations, Dillon, in volume 4 of the fifth edition of his work on Municipal Corporations (section 1706), expresses the rule as follows: "

"They are under no obligation to provide for everything that may happen upon them, but only for such things as ordinarily exist or such as may reasonably be expected to occur."

Elliott on Roads and Streets (3d Ed.) vol. 2, § 793, limits the liability to the exercise of ordinary care, and exempts the city as an insurer.

In McQuillin on Municipal Corporations, vol. 6, § 2726, the rule is thus stated:

"In brief, the municipality is never an insurer against accidents, nor a guarantor of the safety of travelers on its streets."

See, also, 28 Cyc. 1366, 1367.

Webb's Pollock on Torts, at page 45, logically puts it as follows:

"Now, a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behaviour we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure a what appears likely in the known course of things. This being the standard, it follows that, if in a particular case (not being within certain special and more stringent rules) the harm complained of is nor such as a reasonable man in the defendant's place should have foreseen as likely to happen, there is no wrong and no liability."

See, also, Ray on Negligence of Imposed Duties, pp. 133, 134, cited in Weesen v. Railroad, 175 Mo. App. loc. cit. 380, 162 S. W. 304; Schaeffer v. Jackson Township, 150 Pa. 145, 24 Atl. 629, 18 L. R. A. 100, 30 Am. St. Rep. 792, 794; Wilson v. Town of Granby, 47 Conn. 59, 36 Am. Rep. 51; McGrew v. Stone, 53 Pa. 436.

McQuillin on Municipal Corporations, vol 6, § 2726, in discussing the rule in this connection, uses the following language:

"And inasmuch as municipalities are liable for injuries upon highways only when negligent in regard to the condition of the way, the mere fact that an injury happened, from a condition which reasonable men in general would not consider unsafe, is not enough...