Vogelgesang v. City of St. Louis

Decision Date11 May 1897
Citation40 S.W. 653,139 Mo. 127
PartiesVOGELGESANG v. CITY OF ST. LOUIS.
CourtMissouri Supreme Court

2. Plaintiff in an action against a city for injuries caused by a defect in a street expressly alleged that a dangerous defect existed, and averred facts supporting that allegation, and further alleged "that, notwithstanding the fact that said hole was a nuisance, and a source of danger to the traveling public, yet the same, under ordinary circumstances, and with the exercise of ordinary care, could be passed with safety." Held, under Rev. St. 1889, § 2074, requiring pleadings to be liberally construed, that the quotation was not an admission that the street was reasonably safe for travel by the exercise of ordinary care, but merely showed that the defect was not so necessarily dangerous as to render plaintiff guilty of negligence in attempting to pass over it under any circumstances.

Appeal from St. Louis circuit court; L. B. Valliant, Judge.

Action by John Vogelgesang against the city of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action for damages for personal injuries alleged to have been caused by the dangerous and defective condition of a street in St. Louis, by which plaintiff was thrown from his wagon, and his leg broken. The plaintiff was and is a farmer residing about 10 miles west of St. Louis. On the 20th day of November, 1893, he drove a team of well-broken, gentle mules, hitched to a two-horse wagon, to the city, for a load of cement, which he was to haul to Kirkwood. At a point on Chouteau avenue where it crosses the St. Louis & San Francisco Railway there is an iron bridge which passes over the railroad, which forms a part of the roadway and traveled surface of said street. This bridge has wooden floors, which are laid crosswise or "skew," so that when a wagon passes over it the wheels do not leave the floor of the bridge at the same time, but as the wagon goes west the north wheel leaves the floor first and then the south wheel. This bridge has a partition in the center, so that wagons going west pass on the north roadway and those going east on the south roadway of the bridge. As plaintiff came into the city in the morning, he drove over this bridge, and noticed that at the west end of the bridge, where the wooden floor terminated and the macadam of the street began, there was a hole or abrupt depression in the macadam of the depth of from 6 to 10 inches, according to the judgment of different witnesses. This hole had been formed by the wheels of various vehicles coming off of the bridge one at a time, and diagonally, on the macadam, which was lower than the floor, with a churning motion, and by degrees grinding out, as it were, a hole or depression at the point of junction between the macadam and the floor of the bridge. Chouteau avenue at this point was a much-traveled highway or street. Having obtained his load, consisting of 12 barrels of cement, plaintiff started to Kirkwood by way of Chouteau avenue. He sat on top of the cement barrels to drive. The wagon bed was about 18 inches deep, and a barrel of cement about 3 feet high. He chose Chouteau avenue because his most direct and convenient route. He could have gone by Market street or Theresa avenue by going four blocks out of his way and back. When he reached the center of this bridge on Chouteau avenue over the railroad a train moving west shot off steam right under the mules, and thereupon one of the mules shied, and rushed against the other mule, and shoved him against the wagon pole, and they quickened their gate, and alternately shoved each other north and south till they reached the end of the bridge, when he partially lost control of them, and as the first wheel went off of the bridge it dropped into the hole with such force that it threw him off of his seat and in front of the wheels, which ran over his ankle, and broke it. The evidence tended to show this hole had been permitted to remain in this condition from three weeks to three months. Plaintiff testified he knew of the hole, but thought he could pass over it in safety, notwithstanding its character, and thinks yet he could have done so if his mules had not gotten partially beyond his control. He says he would have tried to go over on the car track. He could have got the right-hand wheel on the car track and the other on the offset where the hole was not so deep, and thus ease the wagon down so as not to give too sudden or great a shock to it. Plaintiff's ankle was broken. He remained at a house in the neighborhood for 14 days, and was taken home, and confined to his bed 4 or 5 weeks and to the house for 3 months, and then used crutches 6 or 7 months. He still suffered pain at the time of trial. His services on the farm were worth $2 a day. His doctor's bill was reasonably worth $150 to $200. He owed board at the house at which he remained the first two weeks, and he testified he could not do over half as much work since his injury as he could before he was hurt. The physician testified that the injury would be permanent in reducing his capacity to labor. The cause was tried to the court, both sides waiving a jury. The court gave the following declarations of law at the request of defendant: (1) "The court declares the law to be that, even if the city was negligent in allowing a depression to remain at the west end of the bridge, after it knew there was such a depression, or, by the exercise of reasonable care, could have learned such fact, yet plaintiff is not entitled to recover unless such depression was the proximate cause of the injury complained of in this case." (2) "The court declares the law to be that if the street, at the point mentioned in the other instructions, was in a reasonably safe condition for a person exercising ordinary care to safely pass over the same, then the city is not liable, even though some intervening, efficient, accidental cause operated to produce the injury to plaintiff; that is, that an accidental cause cannot increase the liability of the city so as to make it liable under the extraordinary circumstances caused by the accidental cause supplementing the condition of the street, which did not amount to negligence without said accidental cause." The court refused the following declarations of law: (1) "The court declares the law to be that upon the evidence adduced the plaintiff is not entitled to recover, and the judgment must be for defendant." (2) "The court, sitting as a jury, declares the law to be that, if plaintiff could have safely passed along Chouteau avenue between Vandeventer avenue and Tiffany street on the 20th of November, 1893, by the exercise of ordinary care, notwithstanding the existence of a depression, if such there was, at the west end of the railroad bridge, and that plaintiff's injury was caused by his team taking fright at a locomotive and train of cars passing under the bridge while plaintiff was crossing the bridge, then the existence of such depression was not the proximate cause of the injury to plaintiff, and plaintiff is not entitled to recover." (3) "The court declares the law to be that, if the plaintiff could have safely passed along Chouteau avenue between Tiffany street and Vandeventer avenue, by the exercise of ordinary care, under ordinary circumstances, and that the injury to plaintiff was occasioned by his team taking fright at a locomotive and train of cars passing under the bridge while plaintiff was crossing over the same, in consequence of which plaintiff lost, or partially lost, control of his team, and the team passed over the point of the street which was safe under ordinary circumstances, but which might not be safe when passed...

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