Benton v. City of St. Louis

Supreme Court of Missouri

Benton v. City of St. Louis

154 S.W. 473, 248 Mo. 98, 1913 Mo. LEXIS 13

CourtSupreme Court of Missouri

DecidedFebruary 28, 1913

StatusPublished

Cited by28 cases

This text of 154 S.W. 473 (Benton v. City of St. Louis) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Benton v. City of St. Louis, 154 S.W. 473, 248 Mo. 98, 1913 Mo. LEXIS 13 (Mo. 1913).

Pincite

Opinion

LAMM, J.

This is a second appeal. See Benton v. St. Louis, 217 Mo. 687, for the first, where a full statement may be found.

Recovery is sought on the theory that on a street of defendant there was a wooden sidewalk; that close thereto in the street and extending under the sidewalk was a large, deep excavation,' a sink-hole; that there was no rail on the sidewalk protecting travelers; that the sidewalk boards were loose and insecure, etc.; all of which facts were known to defendant or might have [102]*102been known by due diligence, etc. That the excavation was filled with water even with the sidewalk; that in the particulars aforesaid the street and sidewalk were in an unsafe condition and had been negligently allowed to remain in that'condition; and that the infant son of plaintiffs, George, aged seven years, on a certain day in May, 1905, stepped or fell from the sidewalk into the excavation and was drowned.

When the ease was here before, we held that the evidence made a case for the jury, provided the place was a public street. That contributory negligence could not be imputed to the infant as a matter of law. Moreover, that there was evidence from which the jury could have determined the controverted question of street or no street against defendant.

A nonsuit having been forced at the first trial because of the announced determination of the court to give an instruction in the nature of a demurrer to the evidence, we ruled that such demurrer would not lie.

When the case went down, defendant filed an amended answer. (Note: Up to that time it had stood on a general denial). Its amended answer was (1) a general denial, (2) a plea of contributory negligence on the part of the infant, and (3) the contributory negligence of the custodian of the infant, to-wit, the mother, Eva A., one of plaintiffs.

Verdict and judgment for plaintiffs for. $2250. Defendant appeals.

Second Appeal. Any material facts not appearing in the first opinion that may be necessary to an understanding of propositions advanced by appellant on the second appeal, will appear in connection with the determination of those propositions in their order.

The general rule being that on second appeal, where the facts are the same and the pleadings relating to those facts are the same, the first decision bécomes the law of the case on points ruled (except in excep[103]*103tional and well-marked circumstances), we will not again notice questions so settled — the applicable maxims being: Concerning similars the judgment is the same; from similars to similars we are to proceed by the same rule; nothing in law is more intolerable than to rule a similar case by diverse law.

Assignments. Indeed, as. we gather, appellant does not endeavor to disturb or unsettle the rulings in the ease. It limits its assignment of error to the following propositions:

First-. In giving plaintiffs’ first instruction, because: Although the sidewalk or highway may have been in defective condition, yet if the defect or condition arose from concurrent causes the city is not liable unless it had notice of both causes in time to supply a remedy.

Second: In refusing defendant’s second instruction, because: The city was only required to use reasonable care in making its sidewalks safe for pedestrians' and its liability is not extended to an anticipation of unusual or extraordinary circumstances.

Third: In refusing defendant’s fifth instruction, because: Though a defect exist in a street the defective condition must appear to be dangerous before an action lies — this in the light of all the circumstances.

The facts- being substantially the same on the second appeal as on the first and plaintiffs being entitled to the verdict of a jury, with the question of the contributory negligence of the infant set at rest in the first case, and, having got such verdict, we may state in passing that the question of the contributory negligence in the infant’s mother and the question of street or no street were well submitted and found adversely to defendant. So much is impliedly confessed. ■

I. Plaintiffs ’ first instruction, being long, will not be reproduced. The part pertinent to our inquiry runs:

[104]*104“ . . . and if you further believe from the evidence that the said street and sidewalk were in a dangerous and defective condition, which was liable to occasion injury to persons in the usual and ordinary use of said street, and that this condition was known to defendant, or that said street had remained in such condition for a sufficient length of time before the death of the said George Benton to enable the officers and agents of the defendant, by the exercise of ordinary care, to discover said dangerous and defective condition and to remedy the same before said death, and if you further believe that the death of said George Benton was caused by the said dangerous and defective condition of said street and sidewalk; and if you further .believe that the said George Benton was then and there in the exercise of the same care as is customarily exercised by persons' of ordinary prudence of similar age and under like circumstances; then, if you so find the facts to be, your verdict must be for the plaintiffs.”

In aid of the consideration of the criticism leveled by appellant at this instruction we reproduce the pertinent part of a photographic picture of the locus, put in evidence by defendant, thus:

[105]

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