Stephens v. City of Macon

• Citation: 83 Mo. 345
• Parties: STEPHENS v. THE CITY OF MACON, Appellant.
• Decision Date: 31 October 1884
• Court: United States State Supreme Court of Missouri

83 Mo. 345

STEPHENS

v.THE CITY OF MACON, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Macon Circuit Court.--HON. ANDREW ELLISON, Judge.

AFFIRMED.

Hess & Eberman, and Berry & Dysart for appellant.

(1) Respondent's 4th and 8th instructions put the case to the jury on a wrong theory. Respondent in going on to the sidewalk as he did was guilty of such contributory negligence as to preclude a recovery, and the court should have so instructed. The injury was directly due to his own negligence. 1 Thompson on Negligence, p. 169; 2 Ibid., pp. 1104 and 1129; City of Erie v. Magill, 2 Amer. Corp. Cases, 3; Goshen v. Smith, 92 Pa. St. 435; City v. Krouse, 64 Ill. 19; Griffin v. New York, 9 N. Y. 456; Schaffer v. Sandusky, 33 O. S. 246. (2) The court erred in refusing appellant's 7th instruction. The evidence presents a case in which the city was entitled to notice, express or implied, of the alleged exposed condition of the ditch to render it liable. Bassett v. St. Joseph, 53 Mo. 290; Schweickhardt v. St. Louis, 2 Mo. App. 571. (3) The court erred in refusing the appellant's 8th instruction. Reasonable care and diligence to keep the sidewalk safe and secure was all that could be required. Any other rule would make the city an insurer of the safety of persons. (4) Respondent's instructions ignore the question of notice to the city of the fact that the excavation into which he fell was unguarded. The evidence shows that guards had been across and along the sidewalk prior to respondent's injury, and it should appear that the city had notice of their absence at the particular time of the accident. (5) The court should have granted a new trial on the newly discovered evidence. It was material and not cumulative.

Sears & Guthrie and John F. Williams for respondent.

(1) All the questions of fact which it was necessary for the jury to consider in determining whether defendant was liable, and the measure of damages, were properly submitted to them in appropriate instructions, and the finding of the jury should be sustained. Buesching v. St. Louis Gas Company, 73 Mo. 219; Russell v. Inhabitants of Columbia, 74 Mo. 480; Lœver v. City of Sedalia, 77 Mo. 431; Vaile v. Bliss, 50 Barb. 358; Driscoll v. New York, 11 Hun 101. (2) Appellant at the close of respondent's case did not interpose a demurrer to his evidence, nor at any time ask that the case be taken from the jury, and such instructions would have been improper. Cleveland, Columbus & Cincinnati R. R. Co. v. Crawford, 24 Ohio State 631; S. C. 15 Am. Rep. 633; Marietta and Cincinnati R. R. Co. v. Picksley, 24 Ohio State 654; Nisbitt v. Nashville, 27 Am. Rep. 755; Nagel v. Mo. Pacific R. R. Co. 75 Mo. 653; Hoyt v. City of Hudson, 41 Wis. 105. (3) Appellant's position that the defendant “had no notice that the sidewalk was in an unsafe and defective condition,” is not sustained by the pleadings or the evidence. Defendant permitted the digging of the ditch, and it is the same as if it had dug it itself. Russell v. Inhabitants of Columbia, 74 Mo. 480. (4) There is no rule of law that required the plaintiff, while upon the street, to use extra caution to avoid injury from any defects therein. Plaintiff had a right to presume that the sidewalk was in a fit condition to travel. He was not obliged to presume negligence on the part of those whose duty it was to keep the streets and sidewalks in good condition. 2 Thompson on Negligence, pp. 1172, 1197, 1198 and 1199; Woods v. Boston, 121 Mass. 337; Hawks v. Inhab., 121 Mass. 10. (5) The plaintiff had a right to suppose that there was no dangerous impediment or pitfall in any part of the street, without a light placed to give warning of it, or a suitable railing to protect it. Durant v. Palmer, 29 N. J. L. 544-548; Cooley on Torts, pp. 605, 606, 660 and 661. (6) It was the duty of the city of Macon to keep its streets and sidewalks free from obstructions, protected and guarded from danger, and safe and secure for travel. This duty cannot be evaded, suspended, or cast upon another. If a person is authorized by the proper authorities to make an excavation in the street, the authorities are bound to protect the same, and keep it properly guarded. The city cannot exempt itself from liability resulting from the unsafe condition of the street and has no authority to authorize another to make them unsafe. City of Lincoln v. Walker (Neb.) Northwestern Reporter, Vol. 20, p. 113; Irvin v. Wood, 4 Rob. (N. Y.) 138; Congreve v. Morgan, 18 N. Y. 84; Hart v. Mayor, 9 Wend. 607; Dygart v. Schenck, 23 Wend. 446.

In civil actions at law the finding of the jury on questions of conflicting evidence will not be disturbed by the Supreme Court. Powell v. Camp, 60 Mo. 569; Russell v. Berksthusen, 77 Mo. 417; Hamilton v. Berry, 74 Mo. 176. The application for a new trial on the grounds of newly discovered evidence was properly addressed to the sound discretion of the trial court and the latter court did not err in its ruling thereon. Cook v. R. R., 56 Mo. 381; State v. Ray, 53 Mo. 345; State v. Smith, 65 Mo. 313; Shaw v. Besch, 58 Mo. 107. The damages found by the jury were not excessive.

EWING, C.

This action was brought by the plaintiff against the city of Macon to recover damages alleged to have been sustained by him from falling into an excavation across the sidewalk on Rollins street, in front of block 94, whereby he sustained damages to the amount of $5,000.

The answer is that said plaintiff well knew of said excavation; that plaintiff was injured by his own negligence; that one B. F. Stone obtained permission of the defendant to make said excavation. This map or plat of the ground was offered in evidence, from which the testimony will be more readily understood:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE

The evidence tended to prove that plaintiff was at the southwest corner of Terrill and Rollins streets on Sunday evening about dusk; that he started to his home on the west side of Rollins street, north of where the accident occurred; that he, as a merchant, occupied three store-rooms, marked “Goldsberry and Stephens” on the map, nearly opposite the excavated cellar of Stone; that plaintiff was frequently at a bank near the southwest corner of Rollins and Terrill streets, and going from there to his store he usually walked about the red dotted line from the bank to the middle of the street opposite the drug store; and on this occasion he involuntarily started to his store, but when he reached the middle of Rollins street opposite the drug store, he recollected that it was Sunday and he was going home and not to the store; he thereupon turned towards the left, and approached the sidewalk in front of the cellar excavation at a point, as shown by the dotted line, where a wagonway had been left to permit wagons to go down into the cellar excavation in hauling out the dirt. That Stone's cellar was nine or ten feet deep, and extended from the northwest corner of Terrill and Rollins streets seventy feet north; that at the northwest corner of said streets the excavation was protected as shown on the plat; that there was a ditch, three feet wide, nine feet deep and ten feet long, dug from the cellar to a sewer in the street to drain the water from the cellar. On the south side of this ditch the dirt was thrown up two or three feet high, and tapered down to within fifteen inches to three feet of the open cellar excavation. The red line represents the plaintiff's route and the place where he fell into the ditch, whereas the route usually taken, and which was indicated by a path, was around the end of the pile of dirt, between it and the ditch, to the curbing, which was left untouched, and then across the ditch near the street.

The evidence tends to show that footmen used this walk to such an extent as to have made a plain path along the course above indicated. That the rock and dirt and obstructions, and every evidence of a building being in progress was patent. That the other side of the street was unobstructed, which was the side usually traveled by plaintiff in going to and returning home from his place of business. The evidence tended to show the obstructions and condition of things as represented on the above plat. That the plaintiff had no knowledge of the existence of the ditch until he fell into it. That he was passing along first about dusk and watching the cellar so as not to fall into it, and did not see the ditch until he stepped into it and was hurt.

The answer alleged that the defendant had granted the owner, Stone, permission to cut the ditch across the sidewalk to drain the cellar. The evidence tended to show that the defendant, by its city marshal, examined the ground each night to see that everything was right.

John H. Clayton, sworn on the part of the defendant, testified as follows:

“I was city marshal at the time plaintiff was hurt, and hold that office yet. It was my duty to go and examine the grounds at the new building every night before I went to bed to see that everything was right. I was instructed to do so by the mayor of the city and the city council. I went every night to examine the grounds after the ditch was dug to the time plaintiff was hurt. I think I had commenced this before the ditch was dug. I am sure I did after the ditch was dug. I was to see after the safety of the drain in the street and the cut across the sidewalk, on the part of the city. On the Saturday night before plaintiff was hurt, I went and looked at the works and found them in their usual condition, after work for the day had ended. The guards were up at the southeast corner. The scantling were up around the ditch, as indicated in plat ““B,” one on the north and three on the south. This is the manner in which they had been left for about a week before that night. On that Saturday night, before the accident, I also found two wagons on the sidewalk where the wagon road crosses it. I had noticed these wagons there...