Vogelgesang v. City of St. Louis
| Decision Date | 11 May 1897 |
| Citation | 40 S.W. 653,139 Mo. 127 |
| Parties | Vogelgesang v. City of St. Louis, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Leroy B. Valliant Judge.
Affirmed.
W. C Marshall for appellant.
(1) The circuit court erred in overruling defendant's objection to the introduction of any evidence, and in refusing to give defendant's instruction for a nonsuit at the close of plaintiff's case. It would certainly be a most unreasonable demand to require the corporate authorities of a city not only to provide safe and commodious streets for the ordinary purposes of travel, but to provide thoroughfares of such ample dimensions and such matchless grade, that accidents, even from runaway teams, would be absolute impossibilities. Brown v. Glasgow, 57 Mo. 157; Bassett v. St. Joseph, 53 Mo. 290; Titus v Inhabitants of Northbridge, 97 Mass. 258; Craig v. Sedalia, 63 Mo. 419; Tritz v. Kansas City, 84 Mo. 632; Walker v. Kansas City, 99 Mo. 652; Ellis v. Railroad, 17 Mo.App. 131; Taubman v. Lexington, 25 Mo.App. 225. (2) The plaintiff claims that Brown v. Glasgow is overruled by Hull v. Kansas City, 54 Mo. 601; Walker v. Kansas City, 99 Mo. 652; Brennan v. St. Louis, 92 Mo. 482. (3) I respectfully submit that the question in this case turns entirely upon the consideration of whether or not an accidental, intervening, efficient cause, supplementing a safe condition under ordinary circumstances, will render the defendant liable. Boyd v. Graham, 5 Mo.App. 403; Yocum v. Town of Trenton, 20 Mo.App. 489; 1 Sherm. & Redf. Neg. [4 Ed.], sec. 57; Daniel v. Railroad, L. R. 3 C. 216; Hayes v. Railroad, 111 U.S. 228; Railroad v. Steffing, 66 Md. 504; Williams v. Railroad, L. R. 9 Exch. 157; Railroad v. Stout, 17 Wall. 657; Railroad v. Railroad, 109 U.S. 478; Hubbard v. City, 104 N.Y. 434. (4) The plaintiff can not recover in this case upon the ground that the accident might have occurred from either one of the two causes alleged in the petition. For, aside from the fact that the petition and evidence admit that the condition of the street would not have caused the injury without the condition of the mules becoming frightened at the train, it would then devolve upon plaintiff to show from which one of the two causes the accident occurred, for as to the one, the defendant would be responsible if the street was out of repair, but as to the other, the city would not be responsible for the mules taking fright at the train, and if the evidence showed that the probabilities were equally strong that the damages were caused by the one as much as by the other, the plaintiff would fail in his case. Searles v. Railroad, 101 N.Y. 661; Priest v. Nichols, 116 Mass. 401. (5) The circuit court erred in refusing proper instructions asked by defendant. (6) The circuit court erred in rendering judgment for plaintiff under the allegations of the pleadings, and upon the evidence adduced at the trial, and under the law as declared by the court in the instructions given.
O. J. & R. Lee Mudd for respondent.
(1) It was defendant's duty to keep the streets reasonably safe for use by the ordinary methods of travel. Franke v. City of St. Louis, 110 Mo. 517; Roe v. City of Kansas, 100 Mo. 190; Brennan v. City of St. Louis, 92 Mo. 482; Blake v. City of St. Louis, 40 Mo. 569. (2) Where two causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate -- the one being a culpable defect in a highway, and the other some occurrence for which neither party is responsible -- the municipality is liable, provided the injury would not have been sustained but for such defect. 2 Shearman & Redfield on Neg., sec. 346, p. 28; 1 Id., sec. 32; 2 Thompson on Neg., sec. 1085; Elliott on Roads and Streets, p. 449-451; Houfe v. Town of Pownall, 9 Vermont, 411, loc. cit. 418; 2 Dillon on Mun. Corp. [3 Ed.], sec. 1007, p. 1021; Hull v. Kansas City, 54 Mo. 598; Bassett v. St. Joe, 53 Mo. 290; Brennan v. St. Louis, supra; McDermott v. Railroad, 87 Mo. 285, loc. cit. 302; Bishop on Non-Contract Law, secs. 420, et seq. Municipal corporations are subjuct to this rule. Jones on Neg. of Mun. Corp., sec. 197; Haney v. Kansas City, 94 Mo. 334. (3) Cities are bound to furnish reasonably safe streets, and if they do not, and a traveler is injured by a culpable defect in the highway, it is no defense that his horse at the time, without any fault on his part, was running away or was beyond his control. 2 Shearman & Redfield on Neg., sec. 346, p. 28; Elliott on Roads and Streets, p. 451; 2 Thompson on Neg., sec. 1085; Jones on Neg. of Mun. Corp., sec. 196, p. 106; Ring v. Cohoes, 77 N.Y. 83; Byerly v. City of Anamosa, 44 N.W. 359; City v. Smith, 79 Ind. 308; Campbell v. City of Stillwater, 32 Minn. 308; Mansfield v. City of Dubuque, 25 Iowa 108; Baltimore, etc., Co. v. Bateman, 63 Md. 389. (4) As specially applicable to the facts of this case and sustaining the verdict and judgment. Bassett v. St. Joe, supra; Hull v. Kansas City, supra; Brennan v. St. Louis, supra; Cushing v. Inhabitants of Bedford, 125 Mass. 526; Stone v. Hubbardson, 100 Mass. 49; Winship v. Enfield, 42 N.H. 197. (5) On motion to exclude all evidence for failure of the petition to allege any cause of action, the court should overrule the motion if all parts of the petition together furnish a cause of action, however defective. Young v. Shickle, etc., Iron Co., 103 Mo. 324.
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 ten miles west of St. Louis. On the twentieth 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 from six to ten 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 twelve 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 eighteen inches deep and a barrel of cement about three 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 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 fourteen days and was taken home and confined to his bed four or five weeks, and to the house for three months, and then used crutches six or seven 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:
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