Trower v. The City of Louisiana
| Decision Date | 05 February 1918 |
| Citation | 200 S.W. 763,198 Mo.App. 352 |
| Parties | TONY F. TROWER, a minor, by ABRAHAM TROWER, next friend, Respondent, v. THE CITY OF LOUISIANA, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted, January 8, 1918
Appeal from the Circuit Court of Audrain County.--Hon. James D Barnett, Judge.
REVERSED.
STATEMENT.--The city of Louisiana was incorporated and organized under a special charter granted by the General Assembly of this State, the prior Acts incorporating the town being amended and reduced to one Act, under which it was incorporated as a city in 1849 (see Acts 1848-49). The Act of incorporation was declared to be a public Act, the provisions of which the courts take judicial notice. Referring to that Act it appears that the corporate powers are vested in a city council consisting of two members from each ward, the chief executive officer of the city being designated as a mayor, to be elected by the qualified voters of the city. Among the other duties incumbent upon the mayor were to take care that the laws of the State and the ordinances of the city were duly enforced, respected and observed. The city council is empowered, among other things, to prevent and remove nuisances, to keep in repair the streets, to license, tax regulate and suppress theatrical and other exhibitions, shows and amusements, to establish, support and regulate the night watch and patrol, to regulate the police of the city, to remove all obstructions from the sidewalks, to prevent and remove all encroachments into and upon all streets established by law, and generally, to make rules regulations, by-laws and ordinances for the purpose of maintaining the peace, good government and order of the city and enforce the observance thereof by inflicting penalties and generally to make all ordinances necessary and proper for carrying into effect the powers conveyed by the law in the corporation. There may be subsequent amendments to this charter but our attention has not been called to any here material.
It appears that the mayor entered into a contract with an amusement company to put up and conduct in the streets of the city what is known and commonly referred to as a street carnival. Among other attractions set up in connection with this carnival, was a shooting gallery, which was located on the corner of Fourth and South Carolina Streets, extending some twelve feet north along Fourth Street where South Carolina Street crosses it, and alongside of the City Hall and Court House. This gallery appears to have been inclosed with canvas running up and down the sides, with a canvas top and boards where the guns rested, then a piece of sheet iron at the back of it and pine strips at the edge of this sheet iron. It was equipped with figures of birds and animals and with target guns. The Carnival, it appears, was set up or inaugurated Monday, September 14, 1914, and was to run for a week. On the day that it was set up Tony F. Trower, referred to here as plaintiff and respondent, although he sues by next friend, duly appointed, the boy then being in his 13th year with two companions, came from their homes in the northwest part of the city of Louisiana, about sixteen blocks from where this carnival was located, to look at the various features of the carnival. Reaching the scene between 7 and 8 o'clock in the evening they wandered about, looking at the various attractions and started home about 9 o'clock of that evening, walking north on Fourth Street. They apparently passed the shooting gallery and heard shooting going on in it but they say they did not go into it. They stopped for a few minutes listening to the talk of a drunken man, who was confined in the calaboose in the basement of the City Hall. While standing there listening to the man talking they saw that there were pieces flying from the lead bullets fired from the gallery, which hit the wall of the Court House, the bullets striking the wall above and two or three feet ahead of them, the gallery being behind them. After stopping and listening to the man talking, they started north on Fourth Street towards home. Plaintiff testified that they had stood right close to the building to keep from getting hit by the bullets, knowing that if they did not walk close to the wall they were liable to get hit by the bullets. After they had passed the window of the calaboose and walked north along Fourth Street a few feet from the window, plaintiff was hit in his left eye by a splinter, evidently from one of these bullets, producing an injury which necessitated the removal of the eye. That was done a couple of days after the accident and the boy was confined to his bed and to his house for a number of weeks and has suffered the entire loss of his left eye, there being some evidence to the effect that there was danger of infection from that wound which might extend to the right eye and impair the vision from that. There is no question in the case as to the extent of the injury of the boy.
It appears that this carnival was being conducted under a contract purporting to have been entered into by the mayor with the proprietors of the carnival, and attested by the clerk, under which, in lieu of the license fee for conducting the public amusement, a percentage of the receipts were to be paid the city. This contract is not in the abstract before us, although it appears to have been offered in evidence, and whether admitted in evidence or not is not clear, although it was objected to by the defendant. It seems to have been presented and read to the city council and a note to that effect appears on the minutes, but the council took no action on it one way or the other. It also appears that when it was brought to the attention of the city council, one of the members of the council stated its purport, in that it had been agreed by it to allow a carnival company to show in the city the following week and in lieu of a license the city was to receive 25 per cent. of all concessions, 10 per cent. of the shows and 7 and a half per cent. of riding devices and gross receipts. It appeared by oral testimony that the matter of entering into the contract was discussed by the other members of the council at that meeting, but that no formal action was taken in regard to it. However, it, as signed, was filed in the office of the city clerk. It also appears that the attractions of the carnival had been advertised in the city before its arrival. It further appears that the mayor, possibly the city marshal and some of the city police, were aware of the presence not only of the carnival and its various exhibits but of the setting up and use of this shooting gallery.
Plaintiff introduced and read in evidence an ordinance, the part of which quoted in the abstract under the head of "Duties of the Mayor," being "He shall take care that the laws of the State and the ordinances of the city are duly enforced, respected and observed within the city." Plaintiff also introduced and read in evidence another section of this ordinance under the head of "Police," the part read being: Other parts of the ordinance as to the duties of policemen, it seems were offered and read but are not in the abstract. All of these ordinances as offered and when offered were objected to on the part of defendant on the ground that these ordinances and all of them, relating to the duties of the police officers and other officers about enforcing the laws of the city of Louisiana, were irrelevant for the reason that the defendant city is not liable for the refusal, failure or neglect of its officers to perform their duties, and that these ordinances offered did not have to do with the private corporate affairs of the city of Louisiana; that they have to do solely with the governmental affairs of the city and that it is improper to admit such ordinance in evidence in the case, it being claimed that they are police regulations for the safety and welfare of the public in general and have to do with the State rather than the private corporate affairs of the city. Another ordinance, apparently offered and read in evidence by plaintiff, but not set out in the abstract, was objected to and excluded by the court, on the ground that it did not seem to throw any light on the issues in the case.
The petition in the case, averring the incorporation of the city of Louisiana as a municipal corporation, existing and organized under the laws of this State, and averring that as such it was the duty of the city to keep Fourth Street, one of the streets in the city, on which the accident happened and the sidewalks pertaining thereto, which it is averred constituted a public highway of the city, in a reasonably safe condition for the public use, for cause of action avers that on September 4, 1914 (so says the petition, but the date appears to have been the 14th), the defendant, through its officers, agents, servants and employees, negligently, carelessly, wrongfully and unlawfully permitted an obstruction, to-wit, a shooting gallery to be placed on Fourth Street by some one to the plaintiff unknown, which obstruction, it is averred, was then and there not...
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