Wiethaupt v. City of St. Louis

• Decision Date: 11 December 1900
• Citation: 59 S.W. 960,158 Mo. 655
• Parties: WIETHAUPT v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

59 S.W. 960

158 Mo. 655

WIETHAUPT v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

December 11, 1900.

ACTION FOR PERSONAL INJURIES — NEGLIGENCE OF CITY CONTRACTOR — NONSUIT — RES JUDICATA.

In an action against a city and a contractor for an injury due to the negligence of the latter, a voluntary nonsuit in his favor, taken by plaintiff with leave to bring another suit, as to him, on the court's giving an instruction therefor at the close of plaintiff's evidence, does not affect any rights which the city may have had against him growing out of the cause of action sued on, the matter in issue not thereby becoming res judicata between any of the parties.

Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

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

B. Schnurmacher and Chas. C. Allen, for appellant. John J. O'Connor, for respondent.

VALLIANT, J.

This is a suit for damages on account of personal injuries sustained by plaintiff, occasioned by an obstruction left in one of the streets of the city. The suit originally was against the city and George Prendergast, the latter being engaged in laying water mains in the streets under contract with the city, and, as plaintiff alleges, negligently left a large pipe, intended for that purpose, lying in the street, at night, unguarded, and without warning light or signal, so that the vehicle in which plaintiff was riding was driven against the pipe, and caused the horse that was drawing the vehicle to run away, and plaintiff to be thrown out, and suffer serious injuries. Upon the trial the testimony on the part of the plaintiff tended to sustain his petition, but at the close of his testimony each of the defendants separately asked an instruction for a nonsuit. The court gave the instruction asked by Prendergast, and refused that offered by the city. Thereupon the plaintiff took a nonsuit with leave as to Prendergast, and the trial proceeded as against the city, and resulted in a verdict and judgment for $1,000 in favor of plaintiff, from which the defendant city appeals. The record does not show that any motion was made by the plaintiff to set aside the nonsuit as to Prendergast, but in the city's motion for a new trial the action of the court in forcing the nonsuit was assigned as error. Exception was also preserved to the action of the court in giving the instruction.

The appellant does not now complain that there is any error in the record for which the verdict and judgment against it should be disturbed, but...