Carrington v. City of St. Louis.

whole business and dispose of the whole property, a right which upon the dissolution of the partnership by death of one passes to the survivor, and not to the representatives of the deceased.' In Caswell v. Districh, 15 Wend. 379, the court held an agreement between landlord and tenant, that the tenant should sow certain kinds of grain, and yield a certain portion of each crop to the landlord, made them tenants in common with the crops. In Denny v. Cabot, 6 Metc. 82, an agreement was made between H. and B. by which H. was to supply B. with stock to be manufactured into cloth, at his mill, on H.'s account, and B. was to manufacture the stock into cloth and deliver the cloth to H. at a certain sum per yard, and H. could pay him one-third part of the net profits of the business, and this was held not to make A. and B. partners. In Harrower v. Heath, 19 Barb. 331, an agreement similar to the one to establish which proof was offered in the present case, was held to constitute the owner and occupiers tenants in common, both of the farm and the crops. And in Johnson v. Hoffman, 53 Mo. 504, a similar contract was held to make the landlord and tenants merely tenants in common of the crops and not of the farm. It is useless however to multiply authorities on this subject, as hardly any two cases are exactly alike, and very slight shades of distinction lead to different conclusions. The instruction was erroneous, as we think, and the judgment must therefore be reversed."

Hankey v. Becht, 25 Minn. 212, is in harmony with the principal case.

CARRINGTON V. CITY OF ST. LOUIS.

(89 Mo. 208.)

Municipal corporation — defect in street — knowledge of policeman.

Knowledge by a policeman of a defect in a city street is imputable to the

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city.*

CTION for personal injuries by defect in a street. The opinion states the case. The plaintiff had judgment below.

Leverett Bell, for appellant.

0. G. Hess, for respondent.

BLACK, J. The plaintiff, a minor, brought this suit by his next friend to recover damages for injuries sustained by falling against iron trap-doors of a cellar-way in a sidewalk in the city of St. Louis. The doors covered a cellar-way opening into a building used and *To same effect, Rehberg v. Mayor, etc. (91 N. Y. 137), 43 Am. Rep. 657.

Carrington v. City of St. Louis.

occupied by the police commissioners as a police station. The defendant, Batte, who was a member of the police force, opened the doors, painted them, propped them open with a stick and left them in that position to dry. Plaintiff fell upon them and received severe injuries.

1. It is the duty of the city to keep its street and sidewalks in a reasonably safe condition for persons travelling thereon with ordinary care and caution. This duty and a consequent liability extends

to those cases where the obstruction or unsafe condition of the street is brought about by persons other than the agents of the city. Bassett v. St. Joseph, 53 Mo. 298; s. c., 14 Am. Rep. 446; Russell v. Columbia, 74 Mo. 490. But in such cases it devolves upon the plaintiff to show that the city had notice of the defect or ought to have had knowledge thereof by the use of reasonable care and watchfulness. The court told the jury that Batte was not the agent of the city, and that his negligence was not its negligence, and left it to them to determine "whether the dangerous condition of the sidewalk and cellar-way was known to the city, or by the use of ordinary care might have been known to it in time to have the same safe and thus prevented the injury." Assuming that the policeman was not the agent of the city then there is no evidence that any agent had knowledge of the defect. Obviously then, under the principles of law before stated and the instruction which is in conformity therewith, the question is, was there evidence entitling the case to go to the jury on the ground that the defendant should have known of the defect.

[Omitting this question.]

2. But was Batte, the policeman, an agent or an officer of the city of St. Louis? If he was not, it is by reason of the various special acts of the general assembly establishing a board of police commissioners within and for the city of St. Louis. Chapter 6, appendix to volume 2, Revised Statutes, 1879. By these acts four of the commissioners are appointed by the governor. The mayor of the city is ex-officio a member and president of the board. The members of the police force are appointed by the commissioners, removed by them and under their exclusive control and not subJect to the orders of or interference by the municipal assembly. The commissioners and the force under them are charged with such duties as are usually imposed upon public officers and are commanded among other things to "protect the rights of persons

Carrington v. City of St. Louis.

and property," and to "prevent and remove nuisances on all streets, highways, waters and other places." The commissioners are required to make an estimate annually of the amount of money necessary to enable them to discharge their duties and to certify the same to the municipal assembly and that body is required to make an appropriation therefor, and the disbursing officer of the city is to make payments to the commissioners on their requisition. By a subsequent act (§§ 20 and 21 of said chapter 6), the municipal assembly has power to increase the police force and to increase or diminish and regulate the pay of the police upon the recommendation of the commissioners. By a still subsequent act, passed in 1873 (§ 23 of chapter 6), the municipal assembly has power to fix the salaries of the police force," not to exceed certain designated amounts. Section 33 of the same compiled laws (vol. 2, p. 1535, Rev. Stats., 1879), is as follows: "The members of the police force of the city of St. Louis, organized and appointed by the police commissioners of said city, are hereby declared to be officers of the city of St. Louis, under the charter and ordinances thereof, and also to be officers of the State of Missouri, and shall be so deemed and taken in all courts having jurisdiction of offenses against the laws of this State or the ordinances of said city." All private watchmen, detectives and policemen serving in the city are to obtain a license from the president of the commissioners."

It is plain from these provisions of the law that the police force constitutes a department of the city government. While these officers are State officers for some purposes they are also city officers. They are none the less city officers because for reasons deemed best by the legislature they are under the control of the commissioners, and not the assembly. We see that by express law they are made city officers. No such declarations seem to have been made in the statute with respect to the board of police commissioners of Baltimore, under which the case of Attwater v. Mayor, etc., 31 Md. 462, was decided. There it was held the city was not liable for a failure to remove a nuisance from a public street, because the power to remove the nuisance was lodged in the police and not the city, and the police officers were held not to be city officers. The difference between the statute there and here is material.

But though we must conclude that Batte was an agent of the city, yet it does not follow that the city is liable for all of his neg

Harris v. Hannibal and St. Louis Railroad Company.

ligent acts. The rule of law is well settled that a municipal corporation is not liable in damages for the wrongful or negligent acts of its police or other officers in the execution of powers conferred upon the corporation or officers for the public good, and not for private corporate advantage, unless made liable by statute law, expressly or by implication. Armstrong v. Brunswick, 79 Mo. 319; Kiley v. City of Kansas, 87 Mo. 103; Dill. Mun. Corp. (3d ed.), § 975; Murtaugh v. St. Louis, 44 Mo. 479. But we do not see how these principles of law can aid the defendant here, for it is the unquestioned duty of the city to keep its streets and sidewalks in a reasonably safe condition for persons travelling thereon, and it is liable in damages to one injured by reason of negligence in this behalf. Again the city is liable for the negligent use of its own property, the same as private corporations. Dill. Mun. Corp. (3d. ed.), § 985.

The bill of exceptions in this case recites that it was shown by the defendant that the police station, the building, belonged to and was occupied by the board of police commissioners. We do not understand by this that the title to the property was in them, or that they could hold the title to real estate. The building was evidently furnished by or at the expense of the city of St. Louis. We conclude that as to the act in question Batte was the officer and agent of the city, and that his knowledge of the condition of the trap-door was notice to and knowledge thereof on the part of the city.

[Omitting minor point.]

All concur.

Judgment affirmed.

HARRIS V. HANNIBAL AND ST. LOUIS RAILROAD COMPANY.

(89 Mo. 233.)

Carriers—contributory negligence ·

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· passenger on freight train.

A passenger in the caboose of a railway freight train, on the stopping of the train a quarter of a mile short of his destination, got up to walk to the door and was thrown down and injured by the sudden backing of the train. Held, that his negligence prevented his recovery of damages. (See note, p. 113.)

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CTION for personal injuries by negligence. The opinion states the case. The plaintiff had judgment below.

Harris v. Hannibal and St. Louis Railroad Company. Vinton Pike and Strong & Mosman, for appellant.

W. N. Boulware, for respondent.

NORTON, J. This is an action to recover damages for injuries to plaintiff while a passenger on one of defendant's trains, and alleged to have been occasioned by the carelessness and negligence of defendant's servants in managing the train, whereby he was thrown down on the floor of the car and seriously injured. The answer was a general denial, and also set up contributory negligence on the part of the plaintiff. The case is before us on defendant's appeal from the judgment rendered for plaintiff. At the close of plaintiff's evidence defendant asked an instruction by way of demurrer to it, which the court overruled, and this action of the court is assigned as one of the grounds of error.

The only witness on behalf of plaintiff, as to the circumstances under which the injury complained of was inflicted, was the plaintiff himself, who testified in substance that he took passage in a caboose attached to one of defendant's freight trains, to be carried from Palmyra to West Quincy; that the train, before reaching the depot at West Quincy, stopped about a quarter of a mile therefrom; that ten or fifteen minutes after it stopped he got up to see if he was to get off there, it occurring to him that he had seen a notice that passengers would be expected to alight when the train. stopped; that he knew the train was not at the depot; that the train generally went further cast toward the depot than it did on this occasion before it stopped; never had known it to stop so far away to let passengers off; supposed they were going down to the depot till they remained there longer than usual; that while he was walking to the door of the car a coupling was made, causing a more violent concussion or jar than he ever before experienced, though he had been in the habit of riding on trains for many years, which threw him down on the floor of the car, inflicting the injury for which he sued; that he may have heard the cars moving; that he was thinking of business and did not notice particularly; that he supposed he could have heard the cars while he was seated, and that he did probably hear them, but did not remember; that when he got up from his seat some person was sitting in a chair, and that on getting up after the concussion or jar which threw him down, he saw the chair on top of the person who occupied it.