Thrush v. City of Cameron

• Decision Date: 05 April 1886
• Parties: JAMES M. THRUSH, BY NEXT FRIEND, Respondent, v. THE CITY OF CAMERON, Appellant.
• Court: Kansas Court of Appeals

21 Mo.App. 394

JAMES M. THRUSH, BY NEXT FRIEND, Respondent, v. THE CITY OF CAMERON, Appellant.

Court of Appeals of Missouri, Kansas City.

April 5, 1886

APPEAL from Clinton Circuit Court, HON. GEORGE W. DUNN, Judge.

Reversed and remanded.

The case and facts are stated in the opinion of the court.

WILLIAM HENRY, for the appellant.

I. The governing body of a city of the fourth class is the mayor and the board of aldermen (sect. 4940, Rev. Stat.) and their power over the streets is a legislative power, the necessity and expediency of the exercise of which they are the judges. 2 Dill. Mun. Corp. (3 Ed.) sect. 680, 686. Hence, what the street commissioner did, under the direction of the mayor, if a legal wrong, was that of the mayor and commissioner, and they alone are liable. Rowland v. City of Gallatin, 75 Mo. 134; Thompson v. Boonville, 61 Mo. 282; Hillsdorf v. St. Louis, 45 Mo. 94.

II. Liability, on the part of cities, springs from the duties enjoined upon them; the mere wrongful acts of those other than the governing body, in causing obstructions, cannot render the city liable. 2 Dill. Mun. Corp. (3 Ed.) sects 666, 967; Armstrong v. Brunswick, 79 Mo. 319; Bassett v. St. Joseph, 53 Mo. 290; Bowie v Kansas City, 51 Mo. 454; Loewer v. Sedalia, 77 Mo. 431; Bonine v. City of Richmond, 75 Mo. 437.

III. Since, to recover for injuries from dangerous streets negligence must be the basis of the action, liability cannot spring from the mere erection of a nuisance. Bonine v. City of Richmond, supra; 2 Dill. Mun. Corp. (3 Ed.) sects. 1018, 1025.

IV. Municipal corporations are only bound to keep such streets in repair as are necessary for the use of the traveling public. Craig v. Sedalia, 63 Mo. 477; Bassett v. St. Joseph, 53 Mo. 290.

V. Damages which are not the natural and proximate consequence of the act complained of, cannot be recovered. Clemens v. Railroad, 53 Mo. 366; Lake v. Mill??ken, 62 Me. 240.

ROLAND HUGHES and J. F. HARWOOD, for the respondent.

I. A municipal corporation has no more right to erect or maintain a nuisance than a private individual has. It may become necessary to place obstructions upon the sides of a street for the purpose of preparing the traveled path, by the removal of trees, stones, or the like. Beyond this sort of work all obstructions are nuisances. Johnson v. Whitfield, 18 Me. 286. Any obstruction in a street which tends to annoy persons living upon or near it, which renders it more difficult of passage, and increases the danger of injury to persons or property, from collision of carriages, or other causes, is a nuisance. State v. Mayor, etc., Mobile, 5 Porter (Ala.) 279; Dygert v. Schenck, 23 Wend. (N. Y.) 445.

II. The defendant's instructions were rightfully refused. They were all based on the claim that the city had the right to close up part of the street, and inclose it with a dangerous barrier, if there was enough of the street left open for people to pass along. These instructions are pregnant with legal heresy as to negligence.

III. The case was fairly tried.

IV. The cases cited by defendant are either inapplicable, or sustain the claim of plaintiff.

PHILIPS P. J.

This is an action to recover damages against the defendant municipal corporation for erecting a barbed wire across a portion of one of its streets, against which the plaintiff, a minor, ran his face, and was injured. The plaintiff recovered judgment, from which the defendant prosecutes this appeal.

This judgment is sought to be sustained in argument at this bar by respondent's counsel, on two theories: first, that the city erected the barbed wire on a part of its street, which was a dangerous nuisance, and is, therefore, answerable for the injury done the plaintiff by running against the same, without fault on his part; and, second, that the wire, being an obstruction in the street, and a dangerous nuisance, the defendant negligently suffered the same to so remain, whereby the plaintiff was injured, etc.

The cause of action, of course, must be ascertained and determined by the allegations of the petition. Recovery can be had upon no other ground. Duncan v. Fisher, 18 Mo. 404; Irwin v. Chiles, 28 Mo. 576-8; Harris v. Railroad, 37 Mo. 310; White v. Rush, 58 Mo. 105; Newham v. Kenton, 79 Mo. 382.

It is quite clear, from the whole scope and tenor of the petition that plaintiff counts alone upon the fact that defendant placed, or caused to be placed, the wire on the street. It is distinctly averred, " that on or about August, 1883, the defendant caused to be placed a row of posts," etc., * * * " that afterwards, on or about the ______ day of September, 1883, the defendant, in disregard of injury to persons passing along said street, and heedlessly disregarding the safety of such persons, fastened, or caused to be fastened, and permitted to be fastened, the end of a twisted strand," etc., " thus making a barrier across said passage way, obstructing a portion of said street." It is then averred that this wire was a dangerous...