Denny v. Virginia Bridge & Iron Co.

GOODE, J. This action was instituted to recover damages for an injury alleged to have been caused to a mare by the negligence of defendant, a corporation. The company was constructing a wagon and footbridge across Big River near the village of Cedar Hill in Jefferson county. In said village was a blacksmith shop conducted by Ernest Stovesand, and in front of the shop ran a street or highway which had been traveled by the public for from twenty to forty years. There was no proof it had been worked by the county authorities and the village itself was unincorporated. Nevertheless the street was treated as a highway by the traveling public, and there was a well-worn driveway some thirty feet or more wide running in front of the blacksmith shop and constantly used by wagons and teams. The blacksmith would occasionally stand wagons and implements for a while in the part of the highway adjacent to the shop, but the evidence goes to prove he never left such obstructions in the road at night. McKain, superintendent of the bridge work for defendant, told the men working under him to take several large pieces of bridge iron from the side of the bridge to the blacksmith shop, which was eight hundred feet away, in order that work might be done on them by the blacksmith. When this work was finished, the pieces of iron were thrown in the road in front of the shop near the middle of the driveway where teams and wagons passed. The pieces of iron were very ponderous, some being twelve and others [76] twenty-five feet long, and a few of them were fastened together by smaller pieces. The evidence tends to prove they were thrown in a pile near the center of the road by order of McKain; that is he told his men to throw them “out there,” pointing to the middle of the road; and there they lay during the night of January 8, 1908, when plaintiff drove along the street after dark, and the mare that was pulling his vehicle got tangled up* in the iron and broke her leg; with the result she had to be killed. Plaintiff is a physician and was returning from a visit to a patient. He testified the night was very dark and there is no contention he was remiss or contributed to the accident, which was due solely to the darkness and the obstruction of the driveway by the pile of irons. The point made on the appeal is the court should have directed a verdict for defendant for two reasons: Because the village was unincorporated and the county authorities had not expended any money or done any work on the road, and because the foreman was not acting within the scope of his authority when he ordered the iron pieces put in the roadway. The latter defense scarcely merits attention. Unquestionably the evidence went to prove it was within the authority of the foreman McKain to have the pieces carried to the blacksmith shop to be worked on, and that the men who carried them acted under his order in doing so and were subject to his orders generally. Everything he did about the irons was within the scope of his authority as superintendent of the bridge work, and if he directed his men to throw the irons in the roadway, and the proof showed he did, this was the act of defendant. [Snyder v. Railroad, 60 Mo. 413; James v. Muehleback, 34 Mo. App. 512.] Whether the roadwny was the street of an unincorporated village, or had been worked by the county authorities, were facts irrelevant to the present case. It was a public highway in the sense that the public constantly used it and wms licensed to use it. This fact [77] Avas well known to all concerned and in truth it was used by defendant. The foreman knew teams and vehicles drove along it constantly and defendant cannot be excused for his act of putting a dangerous obstruction in the middle of the roadAvay and leaving it there through the darkness of the night when he must have known it Avould endanger animals and persons. Counsel for defendant hold the theory that there can be no liability unless the thoroughfare was a public road or street in such sense that one could be prosecuted for obstructing it. The essential fact is that defendant’s foreman kneAV it was a street or road in use by travelers and so knowing placed the irons in it and left them there through the night when he' Avas aware, or in common prudence should have been, he thereby exposed travelers to peril. This Avas gross negligence, for which defendant must respond in damages; for it aaIII not do to say one may create pitfalls or dangerous obstructions in a way the people are licensed to use, even though it be not, in some technical sense, a public highway. [Sikes v. Railroad, 127 Mo. App. 337, 105 S. W. 700; Wheeler v. Railroad, 66 Mo. App. 260.] Judgment is affirmed. All concur.