Taubman v. City of Lexington

• Decision Date: 28 March 1887
• Citation: 25 Mo.App. 218
• Parties: WILLIAM TAUBMAN AND JOHN TAUBMAN, Respondents, v. THE CITY OF LEXINGTON, Appellant.
• Court: Kansas Court of Appeals

25 Mo.App. 218

WILLIAM TAUBMAN AND JOHN TAUBMAN, Respondents, v. THE CITY OF LEXINGTON, Appellant.

Court of Appeals of Missouri, Kansas City.

March 28, 1887

APPEAL from Lafayette Circuit Court, HON. JOHN P. STROTHER, Judge.

Affirmed.

The case is stated in the opinion.

WALLACE & CHILES, with R. A. HICKLIN, for the appellant.

I. The court erred in striking out parts of defendant's answer. Such parts constitute good matters of defence to the petition. Titus v. Inhabitants of Northbridge, 97 Mass. 258.

II. Defendant was only required to keep such part of its street in repair as was necessary for the convenience of the traveling public. Bassett v. City of St. Joseph, 53 Mo. 290; Craig v. Sedalia, 63 Mo. 417; Brown v Glasgow, 57 Mo. 157; Oliver v. Kansas City, 59 Mo. 72; Tritz v. Kansas City, 84 Mo. 632.

III. Obstructions resulting from proper construction are lawful. 1 Dillon Mun. Corp. [2 Ed.] sect. 519; Swenson v Lexington, 69 Mo. 157; Tate v. Railroad, 64 Mo 149. And in this case there was contributory negligence. Craig v. City of Sedalia, supra; Brown v. Mayor, Councilmen, etc., of Glasgow, supra; Titus v. Inhabitants of Northbridge, 97 Mass. 258, supra; Dillon Mun. Corp. [2 Ed.] sects. 788-9, notes and authorities; Ibid. 793; Straus v. Railroad, 75 Mo. 185; Nelson v. Railroad, 68 Mo. 593, at 596-7; and see section 5 of the city ordinance read in evidence by plaintiffs. Turner v. Railroad, 74 Mo. 602; Porter v. Railroad, 33 Mo. 128; Zimmerman v. Railroad, 71 Mo. 476, at 488-9; Fletcher v. Railroad, 64 Mo. 484, and cases cited; Harlan v. Railroad, 64 Mo. 480.

IV. The petition does not contain any allegation of notice to defendant of the alleged defect; such averment and proof was necessary in order to the liability of defendant. Bassett v. St. Joseph, 53 Mo. 290; Mayor v. Sheffield, 4 Wall. [U. S.] 189; Oliver v. Kansas City, 69 Mo. 79; Bonine v. Richmond, 75 Mo. 392; Dillon Mun. Corp. [2 Ed.] sects. 790, 595; Morgan v. Bowman, 22 Mo. 538.

V. The court erred in excluding competent and relevant evidence offered by defendant, which tended to rebut the theory of negligence of defendant and to show the contributory negligence of plaintiffs. Bonine v. City of Richmond, 75 Mo. 441.

VI. The court erred in giving the instructions asked by plaintiffs. They are manifestly misleading, ignore the issues raised by the pleadings and the evidence, and fail to declare the law as to negligence. Staples v. Town of Canton, 69 Mo. 592; Mauerman v. Siemers, 71 Mo. 101; Henry v. Bassett, 75 Mo. 89; Nugent v. Curran, 77 Mo. 323, 328; Benson v. Railroad, 78 Mo. 504, 513, 514; Abbott v. Railroad, 83 Mo. 271; Price v. Railroad, 72 Mo. 414, 415; Waldhier v. Railroad, 72 Mo. 514; Edens v. Railroad, 72 Mo. 212; Bank v. Murdock, 62 Mo. 70; Donahoe v. Railroad, 83 Mo. 560; Stepp v. Railroad, 85 Mo. 222; Sigerson v. Pomeroy et al., 13 Mo. 620; Chappell v. Allen et al., 38 Mo. 213, 222; Meyer v. Railroad, 40 Mo. 151; Clarke v. Hammerle, 27 Mo. 55, 70; Mead v. Brotherton, 30 Mo. 201; Sawyer v. Railroad, 37 Mo. 240; Zimmerman v. Railroad, 71 Mo. 476; Fletcher v. Railroad, 64 Mo. 487, and cases cited; 2 Dillon's Mun. Corp. [2 Ed.] sect. 789.

VII. The court below erred in overruling defendant's motion for a new trial. See authorities cited above. The court below also erred in overruling defendant's motion in arrest of judgment. The petition of plaintiffs does not state facts sufficient to constitute a cause of action against defendant. See authorities above cited.

VIII. The verdict of the jury is erroneous and defective. There are several causes of action and of damage averred in plaintiffs' petition, and there is but one general finding thereon, and it cannot be seen or known from such verdict, whether there was any finding on account of the alleged injuries to the sleigh, harness or double-trees. And the injuries to the horses, on the evidence, occurred from their being allowed by the driver to get away and run off, after the injury occurred to the sleigh, and outside of the city limits, at or near a county bridge. Bricker v. Railroad, 83 Mo. 391. On the whole case appellant respectfully submits that the judgment of the court below should be reversed and this cause remanded for a new trial.

BLACKWELL & STROTHER, for the respondents.

I. The court did not err in striking out parts of defendant's answer; they constituted no legal, equitable or proper defence to plaintiffs' petition. Sects. 3521 and 3529, Rev. Stats.; Bliss on Code Pleadings, sect. 423. The city could not surrender its jurisdiction over its streets, so as to relieve itself of liability caused by the improper and dangerous construction and operation of the street railway by Ewing, Leard and Young, under their license, franchise and privilege. Wallace v. Mayor of New York, 2 Hilton 440; Mayor of New York v. Bailey, 2 Denio 433-45; Mayor of New York v. Freuze, 3 Hill 612 and references; Wendell v. Mayor of New York, 39 Barb. 329; Nelson v. Railroad, 26 Vt. 717; Blake v. City of St. Louis, 40 Mo. 569. The city was bound to keep its streets, and all the appurtenances thereto, in order, and in safe condition, for vehicles passing over the same, either for business or pleasure, and failing to do so, was liable for damages resulting from such failure; it has supreme power and exclusive jurisdiction over such streets, and the corresponding duty of exercising reasonable care over them is a necessary concomitant of such jurisdiction. Wallace v. Mayor of New York, 2 Hilton 440; Browning v. City of Springfield, 17 Ill. 143; Hutten v. Mayor of New York, 5 Sud. 163; Mayor and Aldermen of Memphis v. Sasser, 9 Humph. 757; Mayor of New York v. Freuze, 3 Hill 612; Mayor of New York v. Bailey, 2 Denio 433; Boston v. City of Syracuse, 37 Barb. 292; Wendell v. Mayor of New York, 39 Barb. 329; Weightman v. City of Washington, 1 Black (U. S.) 39; Nebraska City v. Campbell, 2 Black (U. S.) 590; Lloyd v. Mayor of New York, 1 Sud. 369; Blake v. City of St. Louis, 40 Mo. 569; Oliver v. City of Kansas, 69 Mo. 79.

II. The court did not err in overruling objections to evidence, because the petition did not aver notice of defects, or that the street was in the hands of a bailee for hire. The franchise granted by it was an extraordinary and unusual one, and such as would authorize obstruction, in some degree, of public travel. It, therefore, became, and was, the duty of the defendant to supervise, control and guard the construction and operating of said street railway, and to see that it was built, constructed and operated according to the terms and conditions of the law authorizing such construction and operation. And, having such control and supervision over said street railway, and the construction and operation thereof, the law presumes notice and knowledge, on the part of defendant, of any and all defects in such construction, and express notice is not required. Swenson v. City of Lexington, 69 Mo. 157; Wendell v. The City of Troy, 39 Barb. 337; Stoers v. The City of Utica, 17 N.Y. 108; Currier v. Lowell, 16 Pick. 170; Shearman & Redfield on Neg. sect. 170; Bowie v. Kansas City, 51 Mo. 454; Tower v. The City of Sedalia, 77 Mo. 431. If a reasonable time has elapsed, no express notice is necessary. Market v. City of St. Louis, 56 Mo. 189; 1 Thompson on Neg. p. 762, sub-sect. 6; Smith et al. v. The City of St. Joseph, 45 Mo. 449.

III. The court committed no error in the excluding of evidence offered by the defendant on the trial of this cause. Such evidence was incompetent, and inadmissible, and had no tendency, as claimed by appellant, " to rebut plaintiffs' theory of negligence on the part of defendant." The court committed no error in giving instructions to the jury on the part of plaintiffs. Said instructions presented the issues made by the pleadings fairly to the jury, and each and all of said instructions, in like cases, have been repeatedly approved by the supreme court.

IV. There is no error or defect in the verdict; there is but one count in the petition, and judgment is asked on said count for two hundred dollars, the aggregate damages resulting from one catastrophe; the verdict is responsive to the pleadings and is a complete bar to another action for any of the injuries mentioned in plaintiffs' petition; there is but one cause of action stated in the petition. It is alleged in the petition that the horses, harness and sleigh were injured at one and the same time, at the same place, and because of the same defects in the street railway; all damages, therefore, resulting therefrom, constitute but one cause of action, and a general verdict is proper. Bricker v. Railroad, 83 Mo. 660, 663.

V. The negligence of the defendant in regard to its duty, and ordinary prudence and care on the part of Joseph Bethel, the driver of said horses and sleigh, formed and made the essential and necessary elements and issues in this action, and the trial thereof; and said elements and issues were sufficiently presented by the pleadings; that all proper, competent and relevant evidence was admitted, and that the instructions given by the court on the part of both plaintiffs and defendant completely covered the case; that the case was fairly tried, and we respectfully submit that the judgment should be affirmed. Smith et al. v. The City of St. Joseph, 45 Mo. 449.

ELLISON J.

This is a suit for damages for alleged injuries to a pair of horses harness, double-tree and sleigh, the property of plaintiffs, while hired to, and in possession of, one Joseph Bethel, on the twenty-fifth day of January, 1885, charging that defendant, a municipal corporation, unlawfully, carelessly, wrongfully and negligently, permitted Wm. H. Ewing, Alfred R. Leard and John C. Young, a firm to whom defendant had, by ordinance, passed April 21,...