Behrmann v. City of St. Louis

201 S.W. 547, 273 Mo. 578, 1918 Mo. LEXIS 174

Opinion

BOND, P. J.

I. Action to recover fifteen thousand dollars damages for personal injuries alleged to have been sustained by plaintiff through the negligence of an employee of the city of St. Louis.

Petition, The petition alleged that on November 19, 1913, while plaintiff was engaged in repairing a gutter on a certain slaughter house in the city of St. Louis, and while he was standing on a ladder which rested against the top of the building, which was about sixteen feet in height, its base resting on the ground about four feet from the wall of the building, a garbage wagon, owned and operated by the city of St. Louis, and in charge of one of its employees, was driven through the alley in which plaintiff was working, and the driver, in the discharge of his duties as garbage collector, negligently stopped his team directly behind the ladder on which plaintiff was standing at work, although the alley was at that point more than sixteen feet wide; that the driver left his team of mules with no one to watch them and during his absence, and while plaintiff was intently engaged in his work with his back to said alley, the mules suddenly started forward and struck the lower part of the ladder, throwing plaintiff violently to the ground and seriously and permanently injured him.

A general demurrer was filed by the defendant city, upon the sustention of which the plaintiff refused to plead further, whereupon judgment was rendered for defendant and appealed from by plaintiff.

Governmental Capacity. II. The sole question presented by the sustention of the demurrer in this ease is whether or not, upon the facts stated in the petition, the city was acting in its governmental and public capacity, or in its private and proprietary capacity, in which latter event it would be liable for the negligence of its agents and employees in the same way as an individual.

This question must be regarded as stare decisis if the rulings in the recent cases are to be adhered to. It cannot be distinguished in principle from the case of Cassidy v. St. Joseph, 247 Mo. 197, affirmed in Sprague v. City of St. Louis, 251 Mo. l. c. 629. In the former case it was held that the injuries to a fellow workman by a runaway team hitched to a wagon driven by city employees, into which they were shoveling refuse, were not recoverable, for the reason that the city of St. Joseph, in the use of such agency, was exercising a governmental and public power vested in it as a municipality of the State. This decision was- rendered before the trial of this- case and it was the duty of the trial judge to apply the principle therein announced. This was done when he sustained the demurrer to the petition- alleging the facts hereinbefore stated as a basis for the recovery.

The judgment in this case is affirmed. It is so ordered.

All concur.