Shafir v. Carroll

*462 WOODSON, J. This case' is a companion case of Lindman v. Carroll, 308 Mo. 187, which grew out of the same tragedy that is mentioned in the case of Lindman v. Kansas City, 308 Mo. 161, decided at this term of court. While Carroll was a co-defendant in the case with Kansas City, and both cases were tried together in the circuit court, yet there were separate appeals taken by each of said defendants. I refer to the case of Lindman v. Kansas City, 308 Mo. 161, decided at this term of this court, which also grew out of the same catastrophe, at the same time and produced by the same causes as this 'injury was caused, where the curious may find a brief statement of the allegations of the petition, and substantial statement of the facts of the case as ■shown by the evidence. The principles of law applicable to the case are there also fully discussed and decided, with the exception of some additional questions presented and argued by counsel for appellant Carroll. I. Counsel for appellant first contend that the trial court erred in admitting Section 217 of Ordinance 38919; in refusing to strike said section from the evidence; in refusing to give defendant Carroll’s Instruction 10, and in giving plaintiff’s Instruction 1, because said Section 217 did not require the erection of a temporary walk for the use of pedestrians, the same not having been directed by the Superintendent of Buildings., All of this group of contentions are directed at the admission of Section 217 of Ordinance No. 38919, or the contended legal effect of Instruction 1 given for the respondent, and the action of the court in refusing to give Instruction 10' for the appellant. *463 In my opinion there is no merit in these contentions, and my reason for so saying is twofold: (1) It was the duty of the city and Carroll to exercise ordinary care to preserve the sidewalk in a reasonably safe condition for travel, and thereby maintain a separation of pedestrians and vehicles, which are more or less dangerous when they mingle with pedestrians. That is the very purpose of constructing' sidewalks for pedestrians, and constructing driveways for vehicles of all kinds. This was the primary and non-delegable duty of the city. This failure of a division of the different kinds of traffic, or rather the destruction of such division and throwing both into hodge-podge, was the primary and direct cause of the injury in all of these cases, and when Carroll assisted in creating that condition he became a joint tortfeasor with the city. There is nothing new or extraordinary in this class of cases. They involve most ordinary common-law negligence. Ordinary common observation teaches us that when the sidewalk in a populous city is destroyed and the place where it was located is obstructed by building or other materials, the pedestrians in order to pass around such materials will walk dut into the driveway of the street, and thereby expose themselves to the dangers of being struck by passing vehicles. While it was negligence on the part of the defendants to thus force pedestrians out into the driveway of the street, yet the danger incident thereto was not so obvious and glaring as to have prevented an ordinarily prudent person from so doing. Any person of common knowledge and prudence should have anticipated this injury, and Mr. Carroll and the city, through its officers and agents, should be held liable for this negligence, and that, too, under the common law, and in my opinion the ordinance is only the declaration of the common law of negligence in different language. The following cases support the foregoing observations: Boyd v. Kansas City, 291 Mo. 622; Welsh v. St. Louis, 73 Mo. 71; Russell v. Columbia, 74 Mo. 480, 490; Norton v. St. Louis, 97 Mo. 537, 541. *464 ■This common-sense view of the matter was unquestionably the cause of the enactment of the ordinance. II. Nor do I think that there is any merit in the contention that the ordinance was ineffective because the Superintendent of Building’s did not require the substitute sidewalk to be constructed in lieu of the original one which was removed, for the reason it was the duty of those who remove a sidewalk or obstruct it, to apply for and procure the permission of the Superintendent before they do so, and they may be arrested and fined for so doing, if they do not get the permit. If the law was otherwise, then the sidewalk could be destroyed or obstructed by any person, and the guilty one might go free if some city officer did not happen to see him commit the crime, in which case he would be taking advantage of his own wrong, and thereby shield himself from all liability for all damages unlawfully and negligently inflicted upon his fellow man, just as is so unjustly attempted in this case. All of these contentions are decided against the appellant. [Willy v. Mulledy, 78 N. Y. 310; McRickard v. Flint, 114 N. Y. 224; Arms v. Ayer, 192 Ill. 601, 614; Rose v. King, 49 Ohio St. 213; 29 Cyc. 439.] Such ordinances should receive a liberal construction because they are enacted for the benefit and protection of the public. III. The refusal of the court to permit Carroll to prove that it had not been the custom for years to construct temporary sidewalks in such cases as this, was not error. 'Custom never repeals a valid law, common or statutory, designed for the protection of the public. See authorities before cited under paragraph one and two. IV. Respondent’s Instruction 3 was expressly authorized by this court in the case of Shafir v. Sieben, 233 S. W. 419. [Daneschocky v. Sieble, 195 Mo. App. 470 ; Adelman v. Altman, 200 Mo. App. 583; Buckner v. Horse & Mule Co., 221 Mo. 700; Harrison v. Light Co., 195 Mo. 606.] *465 V. The evidence made a prima-facie case for the respondent and it was the duty of the court to submit the case to the jury. [Shafir v. Sieben, 233 S. W. 419, 423-4; Adelman v. Altman, 209 Mo. App. 583; Daneschocky v. Sieble, 195 Mo. App. 470.] YI. The foregoing disposes of all the additional points presented by counsel for Carroll, except some subsidiary questions which cannot change the result reached by the court. The judgment is affirmed. All concur, except Grave,s, G. J.., David E. Blair and Ragland, JJ., who dissent; Atwood, J., concurs in the result only.