Hutchinson v. Mullins ( 1915 )

ON REHEARING.

ELLISON, P. J.

A rehearing was granted in this cause and we have had the advantage of a reargument, which has left us convinced that the foregoing opinion has correctly disposed of the points in controversy.

We add this additional consideration. The evidence disclosed that the entire space between the property line and the curb was not taken up, or occupied, with the board sidewalk; a part of it being set in grass and, as we all know, is sometimes called a grass plot or parkway. Plaintiff’s instruction number 1 was so drawn as to tell .the jury that for the purposes of the case such entire space should be considered as the sidewalk which it was defendant’s duty to keep in a reasonably safe condition. The instruction is directly supported by the Supreme Court in Coffey v. Carthage, 186 Mo. 573, and by this court in Fockler v. Kansas City, 94 Mo. App. 464. See also Kossman v. St. Louis, 153 Mo. 293, 299; Wiggins v. St. Louis, 135 Mo. 559, 566.

We recognize the right and practice of a city to permit building material, or material for public improvements, to be deposited in the street, or proper parts of the sidewalk space. But this must be for a reasonable length of time and under proper safeguards. This right does not include, as a matter of law, the privilege of so scattering material either on the street or sidewalk space as to become a menace to persons rightfully passing over or along these places.

We have considered objections to other instructions and find them to be without substantial merit. There is no reason to suppose that the jury were misled, nor that all proper issues in the case were not fully

understood. The judgment is affirmed.

All concur.

MODIFICATION.

PER CURIAM.

Defendant has asked us to modify the opinion written by Judge Trimble so as to clearly express that our decision will not prevent or bar the right of the city to show that Mullins is yet liable to the city, notwithstanding our present decision in favor of the plaintiff against the city. That was our ruling, as is, we think, clearly to be inferred from the following language set forth near the end of Judge Trimble’s opinion, viz., “Inasmuch, however as the city was not prevented from showing that if it was liable at all, it was liable only because of Mullins’ negligence, and inasmuch as the city was not, and is not now, precluded by plaintiff’s course from questioning the validity of the judgment in favor of Mullins so far as his liability over to the city is concerned, we do not think plaintiff should be declared to have forfeited all right to hold the city for its negligence.”

We will therefore sustain the motion to modify in the respect above set forth.