Strother v. Kansas City

• Citation: 296 S.W. 795,316 Mo. 1067
• Decision Date: 08 April 1927
• Docket Number: 25552
• Parties: Sam B. Strother, Administrator of Estate of Sarah Shub, v. Kansas City, Appellant
• Court: Missouri Supreme Court

296 S.W. 795

316 Mo. 1067

Sam B. Strother, Administrator of Estate of Sarah Shub, v. Kansas City, Appellant

No. 25552

Supreme Court of Missouri

April 8, 1927

Motion for Rehearing Denied June 27, 1927.

Appeal from Jackson Circuit Court; Hon. James H. Austin Judge.

Affirmed.

John T Barker, City Counselor, W. H. Allen and John D. Wendorff for appellant.

(1) The court committed error in sustaining respondent's motion to set aside the involuntary non-suit taken by him and in granting respondent a new trial for the reason that Kansas City had the lawful right to permit defendant Carroll to make a temporary use of the street by depositing building material therein for use in the construction of the building which was being erected at the southeast corner of 15th Street and Troost Avenue, as was being done in this case, and Kansas City was not liable in so permitting the use of said street and in not removing the material and filling up the excavation and restoring the walk on the south side of said street. Hunt v. St. Louis, 278 Mo. 213; Hesselbach v. St. Louis, 179 Mo. 505, 523; Press v. Penny & Gentles, 242 Mo. 98; Gorman v. Ry Co., 255 Mo. 483; Stephens v. City of Macon, 83 Mo. 345; Searcy v. Noll-Welty Lumber Co., 243 S.W. 318; Lindman v. Altman, 271 S.W. 515; Dillon, Municipal Corporations (5 Ed.) sec. 1168; Lindman v. Kansas City, 217 S.W. 524. (2) Neither the building material nor the excavation of the sidewalk space was the proximate cause of deceased's injury. Henry v. St. Louis Co., 76 Mo. 288; Haley v. Transit Co., 179 Mo. 30; State ex rel. Lusk v. Ellison, 271 Mo. 463; Stanley v. Union Depot Co., 114 Mo. 606; Setter v. Maysville, 114 Ky. 60; De Camp v. Sioux City, 74 Iowa 792; Storey v. New York, 29 A.D. 316, 51 N.Y.S. 580; Memphis Co. v. Reeves, 10 Wall, 176; St. Louis Co. v. Commercial Co., 139 U.S. 223; Clark v. Pacific Co., 39 Mo. 184; Moffatt Co. v. Union Pacific Co., 113 Mo.App. 544; Saxton v. Ry., 98 Mo.App. 494; Klockenbrink v. Railroad, 81 Mo.App. 351; Hull v. Transfer Co., 135 Mo.App. 119; Saxon v. Transfer Co., 145 Mo.App. 693; O'Hara v. Gas Light Co., 244 Mo. 395; Butz v. Kavanaugh, 137 Mo. 503; Ross v. Railroad, 113 Mo.App. 600; Maginnis v. Railroad, 182 Mo.App. 694; Foley v. McMahen, 114 Mo.App. 442; Strobeck v. Bren, 93 Minn. 428; Southwest Co. v. Webb, 116 Ga. 152; Nickey v. Steuder, 164 Ind. 189; Seith v. Commonwealth Elec. Co., 241 Ill. 331; Jones v. City of Fort Dodge, 185 Iowa 600; Lambel v. City of Florence, 115 Kan. 111. (3) Deceased was guilty of contributory negligence which caused her injury in walking in the roadway on the south side of 15th Street, instead of going on the sidewalk on the north side of 15th Street between Troost Avenue and Forest Avenue. Rogers v. Teagarden Packing Co., 185 Mo.App. 99, 109; Smith v. Forrester-Nace Box Co., 193 Mo. 715, 737; Moore v. Railroad Co., 146 Mo. 572; 29 Cyc. 520; 2 Bailey on Personal Injuries, sec. 469, p. 1376; 3 Labatt's Master & Servant, sec. 1249, p. 3432.

Phineas Rosenberg, Darius A. Brown and John G. Park for respondent.

(1) Defendant was "bound to keep the streets and highways in a proper state of repair, free from obstructions, so that they will be reasonably safe for travel." Blake v. St. Louis, 40 Mo. 569; Smith v. St. Joseph, 45 Mo. 449; Bowie v. City of Kansas, 51 Mo. 454; Bassett v. St. Joseph, 53 Mo. 290; Hull v. City of Kansas, 54 Mo. 598; Oliver v. City of Kansas, 69 Mo. 79; Kiley v. City of Kansas, 69 Mo. 102; Beaudean v. Cape Girardeau, 71 Mo. 392; Welsh v. St. Louis, 73 Mo. 71; Russell v. Columbia, 74 Mo. 480; Loewer v. Sedalia, 77 Mo. 431; Jordan v. Hannibal, 87 Mo. 673; Carrington v. St. Louis, 89 Mo. 208; Brennan v. St. Louis, 92 Mo. 482; Norton v. St. Louis, 97 Mo. 537; Boyd v. Kansas City, 237 S.W. 1007; Russell v. Realty Co., 240 S.W. 147; 4 Dillon on Mun. Corp. (5 Ed.) sec. 1708; 13 R. C. L. 182, sec. 182; Shafir v. Sieben, 233 S.W. 423; Megson v. St. Louis, 264 S.W. 23; Shafir v. Carroll, 274 S.W. 755; Lindman v. Kansas City, 271 S.W. 516; Adelman v. Altman, 209 Mo.App. 583. The sidewalk was a safety zone for deceased. The city is liable for the killing which was caused by the destruction of such safety zone. 1 A. L. R. 842 (note); Tuttle v. Briscoe Mfg. Co., 190 Mich. 22, 30, 155 N.W. 724; Oliver v. City of Kansas, 69 Mo. 79; 1 Elliott on Roads & Streets (3 Ed.) sec. 23; Woodson v. St. Ry., 224 Mo. 685; Benton v. St. Louis, 217 Mo. 687; Rogles v. United Rys., 232 S.W. 93; Berry on Automobiles (4 Ed.) sec. 405; Huddy on Automobiles (7 Ed.) secs. 508 to 514; Shafir v. Carroll, 274 S.W. 756; Koerner v. Car Co., 209 Mo. 141; Shafir v. Sieben, 233 S.W. 423; Lindman v. Kansas City, 271 S.W. 522; Walker v. City of Kansas, 99 Mo. 647; Roe v. City of Kansas, 100 Mo. 190; Goins v. Moberly, 127 Mo. 116. (2) The negligence of Carroll in maintaining the obstructions in the sidewalk and the roadway, of the city in tolerating such conditions and the recklessness of Smiley, the driver of the car, concurred to produce this tragedy. The misconduct of no one of them would have been injurious. The combined misconduct of all was disastrous. Shafir v. Sieben, 233 S.W. 423; Lindman v. Kansas City, 271 S.W. 516; Shafir v. Carroll, 274 S.W. 755; Daneschocky v. Sieben, 195 Mo.App. 470; Adelman v. Altman, 209 Mo.App. 583; Buckner v. Horse & Mule Co., 221 Mo. 700; Obermeyer v. Chair Co., 229 Mo. 97; Vogelgesang v. St. Louis, 139 Mo. 127; Hull v. City of Kansas, 54 Mo. 598; Brennan v. St. Louis, 92 Mo. 482; Bassett v. St. Joseph, 55 Mo. 290; Harrison v. El. Light Co., 195 Mo. 606; Benjamin v. St. Ry., 133 Mo. 274; Carr v. Supply Co., 239 S.W. 828. (3) Deceased was not, as a matter of law, guilty of contributory negligence. Walker v. City of Kansas, 99 Mo. 647; Beaudean v. Cape Girardeau, 71 Mo. 392; Law v. St. Louis, 292 Mo. 384; McKenna v. Lynch, 233 S.W. 175; Evans v. Genl. Explos. Co., 293 Mo. 562; Smith v. St. Joseph, 45 Mo. 449; Loewer v. Sedalia, 77 Mo. 431; Barr v. City of Kansas, 105 Mo. 550; Maus v. Springfield, 101 Mo. 613.

White, J. Walker, C. J., and Gantt and Atwood, JJ., concur; Blair, Graves and Ragland, JJ., dissent.

OPINION

WHITE

Sarah Shub was run over and killed by an automobile, January 9, 1916, while passing around obstructions on the sidewalk and extending into the street in Kansas City. The obstructions consisted of material for a building in process of construction on the adjacent lot. The plaintiff, public administrator in charge of the estate of Sarah Shub, brought suit for damages against Kansas City, Martin Carroll, the contractor constructing the building, and Clem B. Altman and Frank G. Altman, owners of the ground upon which the building was being erected.

At the close of the evidence introduced by plaintiff, the defendants, February 21, 1919, asked an instruction in the nature of a demurrer to the evidence, which was given by the court. The plaintiff thereupon took an involuntary nonsuit with leave. He duly filed motion to set aside the involuntary nonsuit, which motion, June 23, 1923, was sustained, and the cause was reinstated upon the docket. Apparently, the delay in acting upon the motion was due to the pendency of several other cases in the circuit court and appellate courts, concerning the same matter. Kansas City, September 7, 1923, filed an application for an appeal, and appeal was allowed to this court (Case No. 25522); September 8, 1923, the appeal of Martin Carroll was allowed to this court (Case No. 25946); and on the same day, the appeal of Clem B. Altman and Frank G. Altman was allowed (Case No. 25521).

The cases in this court were first assigned to Division One, where, on a hearing, the judgment against Carroll and the Altmans was reversed and the cause remanded with directions as to them. As against the city, for lack of majority, there was no opinion, and the cause was transferred to Court en Banc. There was no motion to transfer, and no order transferring, the cause as to Carroll and the Altmans to Court en Banc. The term ended with the record in that condition. While the matter was in Division, on motion of the parties the cases were consolidated, but the order to that effect was ignored by Division One in writing the opinions. Therefore, we have for consideration only Case No. 25522, against Kansas City.

About one o'clock A. M., January 9, 1916, Susan Shub and ten other young persons were returning on foot from a party in Kansas City, walking north on Troost Avenue, which runs north and south. They arrived at 15th Street, which runs east and west, and turned eastward. At the corner of 15th and Troost, a building was in process of erection. The sidewalks on the south side of 15th Street had been taken up, and barricaded to prevent passage on foot. A tool house was erected across the space, and building material consisting of stone, sand and machinery, such as a concrete mixer, etc. were extended from the curb out into the street. Fifteenth street was very wide -- seventy-six feet from curb to curb. Two parallel street-car tracks ran along the street; it was thirty feet from the south curb to the south rail of the south track. The evidence is conflicting as to how close this building material extended to that south rail. It was variously estimated at from twelve feet to one and a half or two feet. These eleven persons turned to the east to walk around that building material which extended east and west, a distance of 75 or 100 feet, and while somewhere between that building material and the street railway tracks an automobile driven by a drunken man, coming from the west at a high rate of speed, dashed into the group, killing four of the number and seriously injured several others. Susan Shub was one of the killed.

The plaintiff seeks to hold the city liable for failure to keep the sidewalk, or...