Tockstein v. Bimmerle
| Decision Date | 01 October 1910 |
| Citation | 131 S.W. 126,150 Mo.App. 491 |
| Parties | BELLE TOCKSTEIN, Respondent, v. CHRIST BIMMERLE, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.
AFFIRMED.
Judgment affirmed.
John O Marshall for appellant.
(1) The petition was insufficient, and evidence thereunder should not have been admitted. It failed to state that the wire guard was dangerous; that the same was wrongfully or improperly constructed, save that it states the same were "near to and on" the sidewalk, which is so inconsistent as to render the two conditions at the same time a physical impossibility. Baustian v. Young, 152 Mo. 317; Norton v. City of St. Louis, 97 Mo. 537; St Louis v. Ins. Co., 107 Mo. 92. (2) The court should have given the instruction at the end of plaintiff's testimony in chief. The testimony of plaintiff clearly showed that she knew of the existence of guard, and there was plenty of room on sidewalk for her to avoid it. One in possession of positive knowledge that the defect is dangerous, and in addition to this circumstance, there is another and safer way, no recovery can be had for an injury to persons or property from an attempt to pursue a dangerous course. Centralia v. Krause, 64 Ill. 19; Lovengarth v Bloomton, 71 Ill. 238; Wilson v. Charleston, 8 Allen 137; Buesching v. St. Louis Gas Light Co. 73 Mo. 219; Murray v. Railroad, 101 Mo. 236; Lenix v. Railroad, 76 Mo. 86; Powell v. Railroad, 76 Mo. 80. (3) A defendant, and wife of codefendant, Sedalia B. Bimmerle, was a competent witness, even after the instruction given which terminated the suit as to her. Harriman v. Stone, 57 Mo. 93; Scrutchfield v. Sauter, 119 Mo. 615; Brownlee v. Fenwick, 103 Mo. 420; Fugate v. Pierce, 49 Mo. 441; Tingley v. Cowgill, 48 Mo. 291; Buck v. Ashbrook, 51 Mo. 539. When title is held by entireties both husband and wife are competent witnesses in actions pertaining thereto, irrespective of marital relations. Edmonson v. Moberly, 98 Mo. 523. (4) The instruction offered by defendants number 1 was proper and should have been given. Miller v. Madison Car Co., 130 Mo. 517; Hartpence v. Rodgers, 143 Mo. 623.
Albert E. Hausman for respondent.
(1) One who permits or causes a wire fence along or near a public highway to become in a dangerous condition to those lawfully using the highway is liable for all resulting damage. Brown v. Wabash, 90 Mo.App. 20; Foster v. Swope, 41 Mo.App. 137. (2) The statement filed before the justice of the peace was sufficient. It advised defendant of the nature of the claim and was sufficiently specific to bar another action for the same damage. That is all that is required. Iba v. Railroad, 45 Mo. 469; Printing Company v. Belcher, 127 Mo.App. 137; Johnston v. O'Shea, 118 Mo.App. at 293; Johnson v. Kahn, 97 Mo.App. 628; Force v. Squier, 133 Mo. 306.
This is a suit for damages alleged to have accrued on account of defendant's negligence in maintaining a defective fence adjacent to the highway. Plaintiff recovered and defendant prosecutes the appeal.
The action originated in a justice's court and a recovery of twenty dollars is sought as damages to plaintiff's skirt which was caught and torn on a wire protruding from defendant's fence over the granitoid sidewalk.
The first argument for a reversal of the judgment is to the effect that the statement of the cause of action is insufficient to support the judgment. After formal matters, the statement recites substantially that defendant owns a certain property, describing it, in the city of St. Louis adjacent to a public street thereof and that he had some time theretofore constructed and then maintained a wire fence in such a manner as to cause two barbs or ends of the wire to protrude over and upon the sidewalk, and on May 31, 1908, while plaintiff was passing on the sidewalk adjacent to said premises her dress was caught on a barb or wire projecting from said fence and torn, to her damage in the sum of twenty dollars; wherefore judgment is prayed for that amount.
The point made against the sufficiency of the statement is that it nowhere alleges the wire fence was dangerous nor that it was either negligently constructed or maintained. The omission of express averments to the effect suggested is wholly unimportant for they are both implied or may reasonably be inferred from the facts stated. The statement was challenged ore tenus at the opening of the trial. In such circumstances the sufficiency of the statement is to be tested after allowing all reasonable inferences and implications which it affords in favor of the pleader. [Thomasson v. Mercantile Town Mut. Ins. Co., 217 Mo. 485, 116 S.W. 1092; s. c. 114 Mo.App. 109, 89 S.W. 564, 1135; Porter v. Railroad, 137 Mo.App. 293, 117 S.W. 680; Rife v. Reynolds, 137 Mo.App. 290, 117 S.W. 652.] Besides, the case having originated before a justice of the peace, the law is satisfied if the statement is sufficient to notify the defendant with reasonable certainty of the cause of action he is called upon to meet and bar another action on account of the same subject-matter. And this is true though the case proceeds for a negligent injury and no specific averment of the negligent act or the dangerous condition of the fence is made. Such negligent or dangerous condition may be understood from the other facts recited. [Hall v. St. L. & Sub. R. Co., 124 Mo.App. 661, 101 S.W. 1137; Polhans v. A. T. & S. F. R. Co., 45 Mo.App. 153; s. c. 115 Mo. 535, 22 S.W. 478; Iba v. H. & St. Joe R. Co., 45 Mo. 469; Burt v. Warne, 31 Mo. 296.]
The evidence tends to prove that several weeks before plaintiff's skirt was caught on the wire, defendant had set posts and stretched several wires thereon immediately adjacent to the granitoid sidewalk in the public street abutting his property. At the point where the wires were made fast to the posts at the corner of his lot, they were twisted so that their ends protruded over the walk in such a manner as to render it likely that one passing might come in contact therewith. As plaintiff was passing on the granitoid walk, she met a lady and two children and in stepping to the side of the walk for the purpose of passing them, her dress was caught on one of the twisted wires and rent, to her damage in the sum of twenty dollars.
There can be no doubt that it is the duty of the owner of land adjoining a highway not to interfere with the safety of persons using the same. The highway is open and free to one and all alike and adjacent property-owners are required to exercise ordinary care in constructing and maintaining abutting improvements on their property so as not to inflict or entail injuries upon one rightfully passing on the walk. It is therefore the rule that where one is injured...
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