Wiggin v. City of St. Louis

• Decision Date: 11 November 1896
• Citation: 135 Mo. 558,37 S.W. 528
• Parties: WIGGIN v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

37 S.W. 528

135 Mo. 558

WIGGIN v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

November 11, 1896.

CONTRIBUTORY NEGLIGENCE — DEFECTIVE SIDE-WALKS — EXCAVATION ADJACENT TO SIDEWALK — INDEPENDENT CONTRACTOR — APPEAL.

1. A pedestrian is not, as a matter of fact, guilty of contributory negligence in walking upon two boards, 20 inches wide, laid over an excavation in the sidewalk next to a building, in the wall of which there was an opening, through which opening the pedestrian fell, into an excavation inside the building; the balance of the sidewalk being muddy, and covered in places with ice, and it not appearing that the pedestrian was aware of either excavation.

2. A city is required to use reasonable care

to protect pedestrians from falling into excavations upon private lots and adjacent to the sidewalk.

3. The fact that a building is being erected by an independent contractor does not exempt the owner from liability for injuries to pedestrians arising from the negligent failure of the contractor to guard excavations adjacent to the sidewalk, and required to be made by the specifications for the building.

4. Under the St. Louis city charter, requiring, in actions against the city for injuries caused by the negligence of any person primarily liable to plaintiff for the injuries, such person to be made a party defendant, and the execution to be first levied on the property of such person, a judgment in favor of such person would, as between himself and the city, be conclusive as to his primary liability; and therefore the city may, on appeal, attack the judgment so far as it affects such person's nonliability.

5. Error in adjudging, as not liable, the person primarily liable, does not entitle the city to a reversal of the judgment against it in favor of plaintiff.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by Andrew Wiggin against the city of St. Louis and others. There was a judgment for plaintiff and for defendant Marshall, and the city appeals. The latter judgment was reversed in so far as it affects the rights of the city.

The action is to recover damages for bodily injuries received by plaintiff by reason of falling into an excavation on Easton avenue. One Angelina Marshall was the owner of a lot on said avenue, on which one W. H. Wittman, as contractor, was constructing a house for her. At the time of plaintiff's injury, the walls of the house, which abutted on the street, had been completed. An excavation about six or seven feet in length, seven feet in depth, and extending out in the street about two feet, had been constructed, for the purpose of making a way into the basement. Along this excavation the wall of the building had been left open, with a view of putting in a bay window. The walls of the excavation had been built of stone, and came above the surface of the ground for five to twelve inches. The space left for a sidewalk was about fifteen feet wide. Mud and ice had accumulated between the curbing and the wall of the excavation. On the afternoon of March 4, 1893, before Wittman, the contractor, left the building, he covered this excavation with two planks, ten inches wide and two inches thick, and put a like plank on edge next the opening in the wall. Plaintiff, in passing along the street that evening, after dark, in order to avoid the mud and ice, stepped upon these planks, and, while walking along them, stumbled or slipped, and fell through the opening in the wall to the floor of the basement, by which he was bruised and otherwise injured, and was confined to his room 6 days, and was not able to work for 15 days. The suit was against the lot owner and her husband, the contractor, and the city of St. Louis. The petition, after stating the facts, charged that "all the defendants so carelessly and negligently conducted themselves in reference to the said excavation that the same was left unguarded, uncovered, open, and without sufficient barriers to prevent persons passing by from falling into the same; and that plaintiff, while lawfully and properly passing along said sidewalk and street, and by reason of the negligence aforesaid, fell and was precipitated into said excavation, and was thereby wounded, bruised, maimed, and permanently injured, to his damage in the said sum of $5,000." The answer of the city of St. Louis was a general denial and contributory negligence. The answer of Mrs. Marshall and husband was a general denial, a plea of contributory negligence, and a special plea to the effect that the contract for the work was let to Wittman, who was an independent contractor, and they were not responsible for his negligence. Defendant Wittman made default. After the introduction of all the evidence, the court directed a verdict in favor of defendants Marshall and her husband. The court refused to direct a verdict for the city of St. Louis, though requested. The case was submitted to the jury on instructions, and a verdict for plaintiff for $750 was returned, upon which a judgment was rendered, and defendant the city of St. Louis appealed.

W. C. Marshall, for appellant. Chas. F. Joy, B. D. Kribben, and C. M. Napton, for respondent.

MACFARLANE, J. (after stating the facts).

1. Was the demurrer to the evidence properly overruled as to the city of St. Louis? It is insisted that the ruling of the court was improper, and a nonsuit should have been ordered, for the reason that the evidence shows conclusively that the negligence of plaintiff directly and proximately contributed to his injury. A consideration of this question requires a more detailed statement of the evidence. The sidewalk along that side of the street — that is, the space between the curb line and the building line — was 15 feet in width. A plank walk, the width of which is not shown, extended up to the lot in question. No sidewalk of any kind was in front of the lot. The ground was muddy, and partly covered with ice. The street outside the curb line was open and unobstructed, but whether paved or otherwise improved does not appear. An electric arc light was hung on each side of the lot, about 300 feet distant from it. When plaintiff reached the lot, he was able to see the mud and ice on the street, and the two planks lying next the wall of the building. It may also be fairly inferred that he could and did see the opening in the wall. There is no evidence that he saw, or, by reasonable care, ought to have seen, the excavation inside the building line, or the danger of making a misstep while walking on the plank. It is true, plaintiff could have walked out in the street, or through the mud, and over the ice; but it was not conclusively negligent for him to choose, rather, to walk upon the plank, which naturally appeared to him to have been placed there for that purpose. He was ignorant of the locality, and had no knowledge that the planks had been placed on the sidewalk space for the purpose of covering a dangerous excavation, except what he might have inferred from the fact that they were there. Had he walked on the ice, and fallen, we might as reasonably inquire why he did not walk upon the plank, which appeared to afford a safe way. It is true, it does not clearly appear — indeed, plaintiff himself does not know — how he came to fall from the plank. He says: "There seemed to be an open space in front, where it was cut out. It came out, and projected from the building, and there was two boards to cover this that projected; and, in order to keep out of the mud, I had to step up probably five or six inches to get up onto those boards; and in making that step, about the second step that I made, I stumbled in some way, and tumbled over into this building, from the boards." It cannot be said, as a matter of law, that plaintiff was negligent in undertaking to walk on these boards, which made a walk 20 inches wide; but, in doing so, he took upon himself the risk of injury from any cause which was apparent to him at the time. But it does not appear that he knew that along one side of the plank there was an excavation seven...