Welch v. McGowan

• Decision Date: 23 December 1914
• Parties: CASIMIR J. WELCH v. HUGH J. McGOWAN, CHARLES E. SMALL and RANDAL MORGAN, Appellants
• Court: Missouri Supreme Court

172 S.W. 18

262 Mo. 709

CASIMIR J. WELCH v. HUGH J. McGOWAN, CHARLES E. SMALL and RANDAL MORGAN, Appellants

Supreme Court of Missouri, Second Division

December 23, 1914

Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.

Reversed.

Gage Ladd & Small for appellants.

(1) The demurrer to the evidence ought to have been sustained. Phelan v. Paving Co., 227 Mo. 666; Hesselbach v St. Louis, 179 Mo. 505; Craine v. Met. St. Ry., 246 Mo. 393; Nessler v. Wrecking Co., 156 A.D. (N.Y.) 348; Johnson v. New York, 208 N.Y. 77; Nolan v. King, 97 N.Y. 565; Westfall v. Water Commissioners, 93 Mich. 210; Lockport v. Licht, 221 Ill. 35; District of Columbia v. Moulton, 182 U.S. 576; Dart v. Bagley, 110 Mo. 42; Sedalia ex rel. v. Smith, 206 Mo. 346; Glaser v Rothschild, 221 Mo. 180; Kansas City ex rel. v. O'Connell, 99 Mo. 357; Vogelgesang v. St. Louis, 139 Mo. 127; Fogg v. Nahant, 98 Mass. 578; McFarlane v. Sullivan, 99 Wis. 361; Johnson v. Superior, 103 Wis. 66; Ritger v. Milwaukee, 99 Wis. 190; Long v. Moon, 107 Mo. 334; Nugent v. Milling Co., 131 Mo. 241; Payne v. Railroad, 136 Mo. 562; Sanguinette v. Railroad, 196 Mo. 466; Weltmer v. Bishop, 171 Mo. 110; Avery v. Fitzgerald, 94 Mo. 207; Flynn v. Wacker, 151 Mo. 545; Champagne v. Hamey, 189 Mo. 709; State v. King, 203 Mo. 560; Meier v. Proctor & Gamble Co., 81 Mo.App. 410; Stafford v. Adams, 113 Mo.App. 717; Pickens v. Railroad, 125 Mo.App. 669; Schaub v. Railroad, 133 Mo.App. 444; Brockman Com. Co. v. Aaron, 145 Mo.App. 307; Graefe v. Transit Co., 224 Mo. 232; Trigg v. Land Co., 187 Mo. 22; Coin v. Lounge Co., 222 Mo. 508; Oates v. Met. St. Ry., 168 Mo. 535; Cohn v. Kansas City, 108 Mo. 387; McFarlane v. Elevated Ry. Co., 194 Mass. 183; Morgan v. Lewiston, 91 Me. 566; McCloskey v. Moies, 19 R. I. 297. (2) The demurrer to the third amended petition ought to have been sustained. Morgan v. Lewiston, 91 Me. 566; McCloskey v. Moies, 19 R. I. 297; Kansas City ex rel. v. O'Connell, 99 Mo. 357.

Walsh, Aylward & Lee and E. R. Morrison for respondent.

(1) Appellants were negligent in permitting the pipe in question to project into the traveled way. Primarily the public are entitled to the use of the entire street. Kossman v. St. Louis, 153 Mo. 59; Schoop v. St. Louis, 117 Mo. 131. And one who obstructs or encroaches upon it has the burden of showing the obstruction to have been reasonably necessary and with the least danger to public travel. Senhenn v. Evansville, 140 Ind. 678; Jackson v. Robinson, 26 Wis. 642. The encroachment must be reasonable in extent and in time, and must be non-negligent. Gerdes v. Iron & Foundry Co., 124 Mo. 354; Dougherty v. St. Louis, 251 Mo. 525; Phelan v. Paving Co., 227 Mo. 707; Hesselbach v. St. Louis, 179 Mo. 522; Dillon on Municipal Corporations (5 Ed.), sec. 1170; Fugate v. Somerset, 97 Ky. 48; Pottier v. Gas Co., 183 Pa. 575; Pennock v. Douglas County, 39 Neb. 305; Chicago v. Brophy, 79 Ill. 279; Frazier v. Borough, 172 Pa. 403, 51 Am. St. 739. (2) The evidence shows that plaintiff had not lost control of his horse. Even if he had lost control this would not bar his recovery. Hull v. Kansas City, 54 Mo. 598; Winship v. Enfield, 42 N.H. 197; Vogelgesang v. St. Louis, 139 Mo. 127; Ring v. Cohoes, 77 N.Y. 83; City of Joliet v. Shufeldt, 144 Ill. 403; Opdycke v. Railroad, 29 L.R.A. (N. S.) 71; Elliott on Roads & Streets (3 Ed.), sec. 793; Railroad v. Stone, 54 Kan. 83; Weisner v. Dillon, 29 Mont. 122; Crawfordsville v. Smith, 79 Ind. 308; Manderschied v. Dubuque, 25 Iowa 108; Martin v. Algona, 40 Iowa 390; Turn. Co. v. Bateman, 68 Md. 389; Dillon v. Raleigh, 124 N.C. 184; Gray v. Water Power Co., 27 Wash. 713; Baldwin v. Turnpike Co., 40 Conn. 238; Augusta v. Hudson, 94 Ga. 135; Janes v. Tampa, 52 Fla. 292, 120 Am. St. 203; McLemore v. City of West End, 159 Ala. 235; Emporia v. White, 74 Kan. 864; McDowell v. Preston, 104 Minn. 263, 18 L.R.A. (N. S.) 190. Even if he lost control it was only temporary. Johnson v. Marquette, 154 Mich. 50. (3) Plaintiff was not negligent in failing to discover the obstruction. Coffey v. Carthage, 186 Mo. 573; Alexander v. St. Joseph, 170 Mo.App. 376; Barr v. Kansas City, 105 Mo. 558; Weisenberg v. Appleton, 26 Wis. 59, 7 Am. Rep. 39; Kendall v. Albia, 73 Iowa 248; Webb v. Heintz, 97 P. 753 (Ore.) ; Valparaiso v. Schwerdt, 40 Ind.App. 608; Dale v. Syracuse, 24 N.Y.S. 968, 71 Hun, 449; Johnson v. Fargo, 15 N.D. 524. (4) The projecting pipe was the cause of plaintiff's injury. (5) Plaintiff did not have knowledge of the projecting obstruction and did not assume the risk thereof. Knight v. Kansas City, 138 Mo.App. 153; Graney v. St. Louis, 141 Mo. 185; Loewer v. Sedalia, 77 Mo. 431; Chilton v. St. Joseph, 143 Mo. 192; Devlin v. St. Louis, 252 Mo. 207; Loftis v. Kansas City, 156 Mo.App. 683; Tackstein v. Bimmerle, 150 Mo.App. 491; Taylor v. Springfield, 61 Mo.App. 266; Keitel v. Cable Ry., 28 Mo.App. 662; Powers v. Ins. Co., 91 Mo.App. 65; Phelan v. Paving Co., 227 Mo. 666; Craine v. Railroad, 246 Mo. 393; Cohn v. Kansas City, 108 Mo. 387; McFarlane v. Railroad, 194 Mass. 183.

BROWN, J. Walker, P. J., and Faris, J., concur.

OPINION

BROWN, J.

Action for personal injuries in which plaintiff recovered a judgment for $ 17,500, and defendants appeal. Kansas City was made a defendant in this action, but, upon the coming in of the testimony, the court sustained a demurrer to the evidence as to said defendant city, whereupon the cause proceeded to judgment against the other defendants above named.

Plaintiff charges that defendants placed a gas pipe on the surface of 13th street in Kansas City, Missouri, in such a negligent manner that it was a dangerous obstruction to said street, and that while plaintiff was driving his horse and buggy eastwardly on said street on April 23, 1907, the wheels of his buggy struck said gas pipe in such manner as to cause plaintiff to be thrown out of his buggy and into a deep ditch, from which fall he received severe and permanent injuries.

The defense is contributory negligence and assumption of risk.

To arrive at a more complete understanding of the manner in which plaintiff received his injuries, we will explain that 10th street and 13th street in Kansas City, Missouri, run east and west, and 10th street lies north of 13th street. Walnut street in said city runs north and south. The first north-and-south street lying west of Walnut is Main street, and the second parallel street west of Walnut is Baltimore avenue. The block between Walnut and Main streets is divided north and south by an alley.

At the time plaintiff received his injuries defendants had dug a ditch and were preparing to lay a large gas pipe along 13th street from Walnut to Baltimore avenue. Defendants had deposited gas pipes twelve feet long and eighteen inches in diameter along the north side of this ditch from Walnut street to the alley which divides the block lying between Walnut and Main.

There is a slight conflict in the evidence as to whether these gas pipes were lying all along the north side of the ditch from Walnut street to Baltimore avenue. Plaintiff says that he does not remember seeing any gas pipes except between Walnut street and the first alley west thereof. He did, however, remember observing (before his injury) that 13th street was "cut open" with a ditch all the way from Baltimore avenue to Walnut street.

Thirteenth street has a width of about thirty-five feet from curb to curb. The ditch was dug by defendants a little south of the center of the street, and a roadway for vehicles was kept open along the north side of the ditch. There is some conflict as to the width of this roadway, but practically all the witnesses state that there was room enough between the north curb of the street and the pipes placed beside the ditch afore-said for two wagons to pass each other by careful driving.

Plaintiff, whose age was thirty-seven, started to drive his "black filly" from 10th street to a messenger office kept by him at 13th and Walnut streets. His vehicle was a low buggy, and a young lady accompanied him on the drive. Plaintiff further testified that he did not usually drive along 13th street as he could reach his office at 13th and Walnut by another street, and, therefore, did not know that 13th street was torn up until he drove onto it. He also testified that he drove south from 10th street down Baltimore avenue to 13th street, and thence eastwardly along the north side of 13th street to the alley between Main and Walnut, where the right wheel of his buggy struck a gas pipe left in the roadway by defendants, causing him to be thrown forward and southward into the ditch dug by defendants, whereby he received very severe and permanent injuries.

Plaintiff and his witnesses also testify that defendants had not dug the ditch across the first alley west of Walnut street, but had excavated the ditch up to the east side of said alley and constructed a barricade from the south curb of the street to and across the end of the ditch at said alley. The barricade is variously described as being from eighteen inches high to as high as the seat in the buggy which plaintiff was driving. Said witnesses for plaintiff further stated that the west end of the first gas pipe lying east of said barricade had been left protruding into the roadway left open for use of persons traveling along the 13th street. Some of said witnesses state that the end of said gas pipe stuck out into the roadway one foot, while others thought it protruded as much as six feet, and that it had been left in that condition a week.

The evidence of defendants' witnesses tend to show that the end of the gas pipe did not stick out into the roadway, and that the work of digging the ditch and placing the pipes in 13th street had only been in operation four days.

Pl...