Wegmann v. City of Jefferson

• Decision Date: 31 October 1875
• Citation: 61 Mo. 55
• Parties: HENRY W. WEGMANN, Respondent, v. THE CITY OF JEFFERSON, Appellant.
• Court: Missouri Supreme Court

61 Mo. 55

HENRY W. WEGMANN, Respondent,

v.THE CITY OF JEFFERSON, Appellant.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Cole County Circuit Court.

Ewing & Smith, with A. W. Ewing, City Attorney, for Appellant, cited Green vs. City of St. Louis, 12 Mo., 414; Taylor vs. City of St. Louis, 14 Mo., 20; Hoffman vs. City of St. Louis, 15 Mo., 65; Schattner vs. City of Kansas, 53 Mo., 162; Dill. Mun. Corp., §§ 741-2, 781, 782, 783, 798, 799, 800, 801; 1 Denio, 597; 2 Denio, 433; 9 Watts, 382.

E. L. King & Bro., for Respondent.

Although the city had the authority and the power to grade and fill its streets, yet if it negligently or carelessly or unskilfully graded or filled its streets, then the city is liable for all damage occasioned in consequence of such negligent or careless or unskilfull grading or filling. (Imler vs. City of Springfield, 55 Mo., 119; Bassett vs. City of St. Joseph, 53 Mo., 290; Schattner vs. Kansas City, 51 Mo., 454; Thurston vs. St. Joseph, 51 Mo., 510.) In the case of Schattner vs. City of Kansas there was no question raised as to any carelessness, negligence or unskilfulness, on the part of the city, in the doing of the work.

WAGNER, Judge, delivered the opinion of the court.

The petition in this case stated that the plaintiff was the owner of a certain piece of property in Jefferson City, situated on Main street, and that the defendant in 1872, by its agents, officers and servants, carelessly, negligently and unskilfully filled up the grade on said street so as to injure plaintiff's property, for which damages were claimed. The answer was a denial of the allegations in the petition, and it further sets up that the defendant was not responsible, because the work was done in pursuance of power vested in it by its charter.

There was a trial before a jury and a verdict for the plaintiff. There was evidence tending to show that in the performance of the work there was negligence and unskilfulness, and that the injury resulted therefrom. The court declared the law to be that the city had the power and authority to grade, regulate and pave its streets; but if it was found from the evidence, that defendant, by its officers and servants, did grade and fill up the street in such a negligent, careless and unskilful manner as to cause the injury, then the defendant was liable; that the defendant, as a corporation, had the power under its charter to grade and pave any of its streets, but in the exercise of that right and power it...