Wheat v. City of St. Louis

• Decision Date: 10 February 1904
• Citation: 78 S.W. 790,179 Mo. 572
• Parties: WHEAT v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

78 S.W. 790

179 Mo. 572

WHEAT v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

OBSTRUCTION IN STREET—ACCIDENT TO TEAM —CONTRIBUTORY NEGLIGENCE.

1. One who, knowing of an obstruction in a street, rising three feet above the street level, which he had driven past daily for a year, is barred from recovery by contributory negligence, as a matter of law; he having run onto it, and been tipped over, either by letting his horse go where it would, or by driving without looking, though he thought he had passed the obstruction, or his mind was so engrossed with other matters that he did not think about it at all.

Appeal from Circuit Court, St. Louis County; Jno. W. McElhinney, Judge.

Action by David E. Wheat against the city of St. Louis. Judgment for plaintiff. Defendant appeals. Reversed.

Chas. W. Bates and Benj. H. Charles, for appellant. Wm. H. O'Brien, B. R. Brewer, and Robt. A. Holland, Jr., for respondent.

MARSHALL, J.

This is an action for $10,000 damages for personal injuries sustained by the plaintiff on November 19, 1898, by his milk wagon running over and being upset by a manhole to a public sewer in Vernon avenue, in the city of St. Louis, nearly opposite 4635 Vernon avenue. The plaintiff recovered a judgment for $1,000, and the defendant appealed. The negligence charged in the petition is that the city constructed and maintained a manhole to a sewer in the street, which projected 3 feet above the level of the street, and which was about 6 feet in circumference, and had earth piled around the manhole, which was 9 feet and 6 inches in diameter at the base, and sloped towards the top, which, it is alleged, was a dangerous obstruction. The answer is a general denial and a plea of contributory negligence. The facts are these: Vernon avenue is only 1 block long, and extends from West End avenue to Walton avenue, and is 60 feet wide. About a year before the accident the city had constructed a sewer near the center of the street, preparatory to constructing the street. The top of the manhole was made to conform to the grade of the street when it was constructed, but is about 3 feet above the level of the street in its present condition. This left a driveway on the north of the manhole 8 feet 4 inches wide, and one on the south of the manhole 12 feet 10 inches wide. When the city finished building the sewer, the appropriation for the improvement of the street ran out, and the work had to be stopped. So this condition had existed for about a year before the accident occurred. The plaintiff was employed by the Union Dairy Company as a driver of one of its milk wagons, and had been delivering milk in that neighborhood for over five years, and on Vernon avenue for over a year. He had to deliver milk to a regular customer at No. 4635 Vernon avenue, and an irregular customer on the opposite side of the street. That was the end of his route, and, when he delivered milk to these customers, he turned and came east again. The manhole stood in the center of the street, and nearly opposite to the steps that lead up into the premises No. 4635 Vernon avenue. The plaintiff knew all about the manhole, and had seen it and driven around it every day for a year, sometimes west of it, and sometimes turning east of it. On the morning of the accident he drove to 4635 Vernon avenue, and got out and delivered milk. When he got out of the wagon, he hung the reins up on a hook at the top of the wagon, which held the horse so he could not move without pulling the wagon by his mouth. He says his horse knew the way as well as he did, and did not need to be guided, and he frequently let him go along without directing him, and he knew where to stop. After delivering the milk, he got into the wagon and took the reins off of the hook, and the horse started. He says he does not remember whether he turned the horse, or whether he let the horse turn of his own accord. At any rate, the horse turned the wagon to go east again, and, in so doing, ran up on the pile of earth surrounding the manhole, upset the wagon, and the plaintiff was hurt. He says it was about 6 o'clock in the morning, and that, while it was after daybreak, the morning was dark and foggy, but not so much so as to prevent his seeing the manhole if he had looked. Other witnesses said that, while it was foggy, one could see across the street, and any one could see the manhole. The plaintiff says that he thought he had passed the manhole, and consequently was not looking for it. At the close of the plaintiff's case, and again at the close of the whole case, the defendant demurred to the evidence. The court overruled the demurrers, and the defendant excepted, and relies solely upon this ruling upon this appeal.

The contention of the defendant is that the city was guilty of no negligence in constructing and maintaining the manhole in the condition shown, but that, even if it was, its negligence was not the proximate cause of the injury, but that the plaintiff well knew the fact and the condition, and was guilty of such contributory negligence as bars a recovery. On the other hand, the plaintiff contends that, while he knew of the existence and condition of the manhole, and might have seen it and avoided it, still he was not obliged to keep it in mind, but had a right to think of something else, and that his mind was engrossed with his work, and he thought he had passed the manhole, and therefore he was guilty of no contributory negligence. The city had a clear legal right to build the sewer, and to leave it projecting 3 feet above the natural level of the unimproved street, and so that it would conform to the established grade of the street when it was improved. But it took the risk in so doing of some one who was unacquainted with its existence and condition, and who was traveling along the street in the nighttime, when he could not see the obstruction, running against it and being injured. Such a person would be entitled to recover, because as to him the city was negligent, and he was not. But the plaintiff does not fall within this rule, for he knew all about the manhole, and it was light enough at the time of the accident for him to see it; and, by the exercise of ordinary care, he could easily have avoided it, just as he had done every day, about the same hour of the day, for a year. It is not clear whether the plaintiff let the horse turn without guidance, or whether he directed him; but, in either event, he is responsible for the wagon striking the mound around the manhole and being upset, for, by the exercise of any care whatever, he could have avoided it. It is true, as claimed by the plaintiff that no one is precluded from traveling a highway in which he knows there are obstructions or defects, and on which he has business, and his knowledge of the condition of the street will not conclusively bar his recovery. Barr v. Kansas City, 105 Mo. 550, 16 S. W. 483; Market v. St. Louis, 56 Mo. 189; Buesching v. Gas Co., 73 Mo. 219, 39 Am. Rep. 503; Loewer v. Sedalia, 77 Mo. 431; Staples v. Canton, 69 Mo. 592. But whilst this is true, the person who knows of such defects, and is injured, must use reasonable care while traveling along such defective street, and that care must increase in proportion to his knowledge of the risk. Foster v. Swope, 41 Mo. App. 137. And such knowledge of the danger is admissible to prove contributory negligence. Flynn v. Neosho, 114 Mo. 567, 21 S. W. 903. As was well said by Lord Ellenborough, C. J.: "A party...