Gantt, J.
Tbe plaintiff as tbe sole surviving ■parent brings this action for damages caused by tbe killing of her unmarried minor son, Frederick W. Franke, on tbe twenty-ninth of February, 1888, by tbe falbng of a stone from tbe front wall of tbe building number 407, North Fourth street, in tbe city of St. [520]*520Louis, the leasehold of which was owned at the time by Mrs. Rebecca Webb, one of the defendants. Prior to February 5, the three upper stories of the building had been leased to Hugh R. Hildreth, who was made a defendant also, for his printing establishment, and the first floor to Hirzog Bros., for a dry-goods store.
Fourth street was the principal retail thoroughfare of the city. On February 5, 1888, this budding and its contents were burned. The front wall was built immediately on the line of the sidewalk. On the day in question, February 29, 1888, three weeks after the fire, plaintiff’s son, then fifteen years old and unmarried, was walking north on Fourth street on an errand for his employer, and when just in front of the damaged wall, a stone about six feet long, thirty inches wide, and about four inches thick, fell out of the upper part of the wall between the fourth story windows, and injured the boy. While no one actually saw the stone come in contact with him, it is clear from all the evidence in the case, and from the character of the injury to the boy’s head, as described by the medical witnesses, that the stone must have struck him a glancing blow. A number of people saw him in the act of falling, contemporaneously with the crash of the stone, and carried him to the nearest drugstore. He was there revived, and immediately sent home; he complained of pains in his head, and, as was drawn out of the plaintiff, and Dr. Bock, on cross-examination by defendant’s counsel, stated, that a falling stone from a building on Fourth street had struck him. As his condition grew worse the following two days, a surgeon was called in by the attending physician, and an operation was performed on his .skull in the hope of saving his life. The surgeon, Dr. Bernays, testified that when he had removed the scalp he was surprised at the horrible fracture of the skull that was presented j the fracture extended clear across; [521]*521it looked like the injury that would be produced by a blow with the flat side of an ase or board.
The testimony showed that, at the time of his death, plaintiff’s son was a strong, healthy boy, earning $4 weekly, as an errand boy.
Under the instructions of the court the jury returned a verdict in favor of defendant Hildreth, and against defendants Webb and the city of St. Louis, for $1,846.46, and both .defendants appealed.
OPINION.
The contention of both the appellants, that the circuit court erroneously sustained the demurrer to the •evidence by the defendant Hildreth, is wholly without merit,. whatever significance is given to section 9 of article 16 of the scheme and charter of St. Louis.
The mere fact, that by the sufferance of Mrs. Webb his engine and boiler remained in the cellar, did not .give him such a possession of that building as to render him liable for not maintaining it in a safe condition. His lease was terminated, his rent was paid, and neither he, nor his employes, were in possession.
II. Nor can the non-joinder of the contractor, Lynds, as a defendant avail either of these appellants. If they desired to get the opinion of the court as to the necessity of making said contractor a party, it was clearly incumbent upon them to do so, either by demurrer or answer, and, having failed to do either, the •objection was waived. R. S., sec. 2047. And, moreover, it is not made a ground for new trial, by either of these defendants.
III. Whatever the rule may be in other states, the law in this state requires that cities and towns shall keep their streets and sidewalks in a condition reasonably safe for the public, and they are liable in damages [522]*522to persons injured in consequence of a neglect of this; d uty.
“Whenever it is discovered by the officers .of the-city that a structure exists in the sides of one of its-streets, so unsafe as to endanger the lives or persons of those passing over and along the street, the duty either to remove it or to make it safe and secure at once arises, and this duty cannot be shifted from the city to another so-as to relieve it from liability for injuries occasioned by it.” Grogan v. Foundry Co., 87 Mo. 321; Kiley v. City of Kansas, 87 Mo. 103.
“The ground of the action is either positive misfeasance on the part of the corporation, its officers or servants, or by others under its authority in doing acts which cause the streets to be out of repair, in which case, no other notice to the corporation of the condition of the street is essential to its liability, or the ground of' the action is the neglect of the corporation to put the streets in repair, or to remove 'obstructions therefrom, or to remedy causes of danger occasioned by the wrongful acts of others, in which cases notice of the condition of the street, or what is equivalent to notice, is necessary, as will presently be stated, to give to the person injured a right of action against the corporation.” 2 Dillon on Municipal Corporations, sec. 1020.
It is not possible to state a rule of notice that would' apply to every case in advance. Each case must, depend upon its own peculiar facts and circumstances.
When the dangerous obstruction or abutting building is in a small village, or on a retired or secluded street, -the inattention of the town or city authorities for several weeks might not amount, of itself, to negligence, and, on the other hand, if a dangerous over-hanging wall,, or unprotected opening upon a sidewalk, upon one of the principal thoroughfares of a great city, was allowed to stand even a day without barricades or danger. [523]*523signals, it would furnish sufficient evidence to justify a jury in finding notice. Negligence is necessarily a relative term, What would be care in a village of a few hundred inhabitants, with now and then a passer-by, would be gross negligence, if permitted in a city of a half million inhabitants, with its throng of busy people, constantly moving along its streets and sidewalks, intent upon business or pleasure, relying upon the city authorities to give notice or warning of danger. Carrington v. St. Louis, 89 Mo. 208.
In 2 Shearman & Redfield on Negligence, section 369, it is said: “Eor practical purposes, the opportunity of knowing, in such cases, must stand for actual knowledge; and, therefore, where open defects in a highway have existed for a considerable time, notice of them is implied, and is imputed to those whose duty it is to repair them; in other words they are presumed to have notice of such defects as they might have discovered by the exercise of reasonable diligence. Such notice may be imputed also where a defect, though temporary, has been of frequent occurrence during a long period; for example, where an individual has habitually used an unguarded cellar door in the sidewalk ; but, on the other hand, it is not to be imputed where a lawful structure has been proved to be exceptionally safe during a long period. It is evident that notice should not be so readily presumed from the continuance of latent defects as in the case of such as are open; while others, like an unguarded precipice at the side of a street, or a decayed wall hmging over a sidewalk,
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Gantt, J.
Tbe plaintiff as tbe sole surviving ■parent brings this action for damages caused by tbe killing of her unmarried minor son, Frederick W. Franke, on tbe twenty-ninth of February, 1888, by tbe falbng of a stone from tbe front wall of tbe building number 407, North Fourth street, in tbe city of St. [520]*520Louis, the leasehold of which was owned at the time by Mrs. Rebecca Webb, one of the defendants. Prior to February 5, the three upper stories of the building had been leased to Hugh R. Hildreth, who was made a defendant also, for his printing establishment, and the first floor to Hirzog Bros., for a dry-goods store.
Fourth street was the principal retail thoroughfare of the city. On February 5, 1888, this budding and its contents were burned. The front wall was built immediately on the line of the sidewalk. On the day in question, February 29, 1888, three weeks after the fire, plaintiff’s son, then fifteen years old and unmarried, was walking north on Fourth street on an errand for his employer, and when just in front of the damaged wall, a stone about six feet long, thirty inches wide, and about four inches thick, fell out of the upper part of the wall between the fourth story windows, and injured the boy. While no one actually saw the stone come in contact with him, it is clear from all the evidence in the case, and from the character of the injury to the boy’s head, as described by the medical witnesses, that the stone must have struck him a glancing blow. A number of people saw him in the act of falling, contemporaneously with the crash of the stone, and carried him to the nearest drugstore. He was there revived, and immediately sent home; he complained of pains in his head, and, as was drawn out of the plaintiff, and Dr. Bock, on cross-examination by defendant’s counsel, stated, that a falling stone from a building on Fourth street had struck him. As his condition grew worse the following two days, a surgeon was called in by the attending physician, and an operation was performed on his .skull in the hope of saving his life. The surgeon, Dr. Bernays, testified that when he had removed the scalp he was surprised at the horrible fracture of the skull that was presented j the fracture extended clear across; [521]*521it looked like the injury that would be produced by a blow with the flat side of an ase or board.
The testimony showed that, at the time of his death, plaintiff’s son was a strong, healthy boy, earning $4 weekly, as an errand boy.
Under the instructions of the court the jury returned a verdict in favor of defendant Hildreth, and against defendants Webb and the city of St. Louis, for $1,846.46, and both .defendants appealed.
OPINION.
The contention of both the appellants, that the circuit court erroneously sustained the demurrer to the •evidence by the defendant Hildreth, is wholly without merit,. whatever significance is given to section 9 of article 16 of the scheme and charter of St. Louis.
The mere fact, that by the sufferance of Mrs. Webb his engine and boiler remained in the cellar, did not .give him such a possession of that building as to render him liable for not maintaining it in a safe condition. His lease was terminated, his rent was paid, and neither he, nor his employes, were in possession.
II. Nor can the non-joinder of the contractor, Lynds, as a defendant avail either of these appellants. If they desired to get the opinion of the court as to the necessity of making said contractor a party, it was clearly incumbent upon them to do so, either by demurrer or answer, and, having failed to do either, the •objection was waived. R. S., sec. 2047. And, moreover, it is not made a ground for new trial, by either of these defendants.
III. Whatever the rule may be in other states, the law in this state requires that cities and towns shall keep their streets and sidewalks in a condition reasonably safe for the public, and they are liable in damages [522]*522to persons injured in consequence of a neglect of this; d uty.
“Whenever it is discovered by the officers .of the-city that a structure exists in the sides of one of its-streets, so unsafe as to endanger the lives or persons of those passing over and along the street, the duty either to remove it or to make it safe and secure at once arises, and this duty cannot be shifted from the city to another so-as to relieve it from liability for injuries occasioned by it.” Grogan v. Foundry Co., 87 Mo. 321; Kiley v. City of Kansas, 87 Mo. 103.
“The ground of the action is either positive misfeasance on the part of the corporation, its officers or servants, or by others under its authority in doing acts which cause the streets to be out of repair, in which case, no other notice to the corporation of the condition of the street is essential to its liability, or the ground of' the action is the neglect of the corporation to put the streets in repair, or to remove 'obstructions therefrom, or to remedy causes of danger occasioned by the wrongful acts of others, in which cases notice of the condition of the street, or what is equivalent to notice, is necessary, as will presently be stated, to give to the person injured a right of action against the corporation.” 2 Dillon on Municipal Corporations, sec. 1020.
It is not possible to state a rule of notice that would' apply to every case in advance. Each case must, depend upon its own peculiar facts and circumstances.
When the dangerous obstruction or abutting building is in a small village, or on a retired or secluded street, -the inattention of the town or city authorities for several weeks might not amount, of itself, to negligence, and, on the other hand, if a dangerous over-hanging wall,, or unprotected opening upon a sidewalk, upon one of the principal thoroughfares of a great city, was allowed to stand even a day without barricades or danger. [523]*523signals, it would furnish sufficient evidence to justify a jury in finding notice. Negligence is necessarily a relative term, What would be care in a village of a few hundred inhabitants, with now and then a passer-by, would be gross negligence, if permitted in a city of a half million inhabitants, with its throng of busy people, constantly moving along its streets and sidewalks, intent upon business or pleasure, relying upon the city authorities to give notice or warning of danger. Carrington v. St. Louis, 89 Mo. 208.
In 2 Shearman & Redfield on Negligence, section 369, it is said: “Eor practical purposes, the opportunity of knowing, in such cases, must stand for actual knowledge; and, therefore, where open defects in a highway have existed for a considerable time, notice of them is implied, and is imputed to those whose duty it is to repair them; in other words they are presumed to have notice of such defects as they might have discovered by the exercise of reasonable diligence. Such notice may be imputed also where a defect, though temporary, has been of frequent occurrence during a long period; for example, where an individual has habitually used an unguarded cellar door in the sidewalk ; but, on the other hand, it is not to be imputed where a lawful structure has been proved to be exceptionally safe during a long period. It is evident that notice should not be so readily presumed from the continuance of latent defects as in the case of such as are open; while others, like an unguarded precipice at the side of a street, or a decayed wall hmging over a sidewalk, are so dangerous as to challenge immediate attention; so that the jury may be warranted in finding a very short continuance of these notorious defects to constitute a sufficient notice of them.”
In this case, the trial court instructed the jury in accordance with the law as above stated, in regard to [524]*524the liability of the city. As to Mrs. Webb, the court charged the jury, they could not find against her, unless they found from the evidence that the wall was in a dangerous and defective condition, and said danger was apparent, or that she was guilty of negligence in not discovering and protecting the same.
It is now urged in this court that the circuit court should have instructed the jury that plaintiff could not recover on the evidence in this case, against either the city or Mrs. Webb. It seems clear to us that the city occupies a position materially different from Mrs. Webb. Was there sufficient proof to take the case to the jury as to the city?
The plaintiff proved that a building four stories high, fronting on Fourth street in the city of St. Louis, had burned on the fifth day of February, 1888. The interior of the building with its stock of merchandise was completely destroyed, the rear and side walls were partly destroyed, the windows and window-sills in the front wall were burnt and charred. The trimming or facing of this front wall consisted partly of upright slabs of stone, six feet long, two and one-half or three feet wide and four inches thick, fastened to the wall by iron bolts or anchors.
Daniel Walsh, a police officer in the employment of the city, testified that this'.building was on his beat; that he observed it daily from the fire till the plaintiff was hurt on the twenty-ninth of February, twenty-four days after the fire.
Hugo Muench, a member of the St. Louis bar, testified: “I remember seeing these premises after the fire; I don’t know when the fire occurred, but I saw them after the fire in a dismantled condition. Men were at work taking the debris out of the building. As I was going up on the east side of the street, I noticed one large rock or stone, which formed part of the front [525]*525■wall, very high up, about the fourth floor, that bulged out very considerably. It was very large and gave me the impression at the time that it was about to fall. I looked at it quite a while; I looked at it on my return, and it was still there.” He fixed the time by the account of the accident in the city press; he stated he saw the bulge in the wall a day or two before the accident.
It was shown by various witnesses that the plaintiff’s son, a lad of fifteen years, was passing along the sidewalk when one of these upright stones fell and struck him, fracturing his skull, from which he died on the third or fourth day. No guards were up, or signals Of any kind. He was earning $4 a week, and was a strong, robust boy. He always paid his earnings to his mother, who is a widow. The court having refused the demurrer to the evidence, the evidence disclosed the city had an inspector of buildings, who inspected this building some four different times after the fire. The last time a week before the accident to plaintiff’s son. It was apparently safe. He did not see the wall the day of the accident.
For the defense, Benjamin Lynds testified that he hiade a careful inspection of this building on twenty-eighth of February, and discovered nothing wrong about it.
The rule is firmly established in this state that a demurrer to the evidence admits every fact which the jurors may infer, if the evidence were before them, and should be sustained only when the evidence, thus considered, fails to make proof of some essential averment. Rine v. Railroad, 100 Mo. 228; Noeninger v. Vogt, 88 Mo. 592, and cases cited; Meyers v. Kansas City, 108 Mo. 480.
Can it be said the jury were not at liberty to believe Mr. Muench’s testimony 1 They saw him; living [526]*526in the same city, they probably knew him. If they did .believe him, then it was a fact that for a day o? two this large stone hung from the ruins of this burnt building threateningly over a street and sidewalk, where human beings were walking every moment, unconscious of their danger, and the police officer on this beat might have observed this as well as Muench, Add to this the knowledge the city had through he? inspector, that this wall had stood there, without any supports for three weeks, after having been exposed tq ,a hot fire, and we think there was sufficient evidence to go to the jury.
But it is said Lynds contradicts Muench. It was for the jury to determine whether they would believ© Lynds or Muench. It is evident they believed Muench, It is the peculiar and appropriate function of the jury to pass upon contradictory evidence. With Muench^ testimony in the case it is evident that was not a latent defect. On the contrary, it was open and obvious, and it must follow, from the law, that if so it was th<l plain duty of the city officers, and the owners of this building, or those in possession at the time to see it, and remove or secure this stone.
IY. As to Mrs. Webb, however, the law did not require the plaintiff to prove actual notice. “It is tha duty of the owner of a building, under his own control •and in his own occupation, to keep it in such safe com dition that travelers on the highway shall not suffe? injury.;; When the dangerous condition of the wall wag shown, and the injury resulting from it, a prima fade case was made as to the owner in the possession. Krohn v. Brock, 144 Mass. 516; Gray v. Gaslight Co., 114 Mass. 149; Barnes v. Beirne, 38 La. Am. 280; Mullen v. St. John, 57 N. Y. 567; Kearney v. Railroad, L. R. 5 Q. B. 411; Exchequer Chamber, 6 Q. B. 759; [527]*527-Cooley on Torts, star p. 665; 1 Thompson on Negligence, 349.
The court very carefully instructed the jury in the fourteenth instruction given for Mrs. Webb “that they ■cannot hold the defendant, Mrs. Webb, responsible for the injury in this case simply because she was the owner ■of the leasehold when the wall fell; but in order to hold her responsible they must further find that she had the possession or control of the premises at the time of the accident.” It was left to the jury to find whether she was in possession or not. The evidence was sufficient to justify the jury in saying she was. Her tenant Hildrethpaidhisrentandobtainedhis acquittance on the sixth day of February. The wrecking company cleaned up the debris for the insurance companies, and finished about the twenty-fifth.
Lynds says he didn’t take charge until about March 15 to rebuild. It was competent for the jury to find under the evidence that as the owner of the leasehold she was in possession, until some one else took the actual possession.
Y. At the instance of Mrs. Webb’s attorneys, the court gave a 'correct instruction as to the measure of damages, as follows: “13 The jury are instructed that if they find a verdict for the plaintiff they are to assess the damages for such sum as will compensate the plaintiff for the loss of her son’s services from' the date cf his death to the time when he would have arrived at the age of twenty-one years, and for the burial and other expenses, if any, incurred by her by reason of his sickness and death, and they are not permitted to allow the plaintiff anything for the mental care, anguish and suffering which she endured by reason of the death of her son.” McGowan v. Ore & Steel Co., 109 Mo. 518.
[528]*528It is now said the verdict is excessive. The evidence shows the boy at fifteen years of age was already earning $4 a week. He was strong and robust and very attentive to business. While the law limits the recovery to his minority, the jury had a right to assume his earning capacity would increase as he grew older. There cannot be an exact mathematical estimate of the value of his life. There • is nothing in this verdict of' $1,846.46 that smacks of prejudice or passion.
YI. Nor was there any evidence upon which to base the instruction as to the boy’s contributory negligence. Unlike the defendants, he was charged with no duty to look after the walls to this building. Without, warning of any kind, he had a right to assume he could safely use the sidewalk on this street. Roe v. Kansas City, 100 Mo. 190.
Finding no error in the record, the judgment is affirmed.
• All concur except Sherwood, C. J., who dissents.