#### KAISER v. CITY OF ST. LOUIS, Appellant.

Division One,

December 22, 1904.

1. STREET: Dangerous Cross-Grade. A cross-grade of four hundredths of a foot in a street (which is less than six inches in ten feet), is not such a dangerous condition that a wagon cannot safely be driven along it, even though the street is in the-midst of a great city and extensively traveled.

2. -: -: Passing Wagons: Street Car. Along the center of an extensively traveled street was a double-track street railway, and between it and the gutter the space was 12.5 feet. The first ten feet had a cross-grade or incline of six inches, and the rest twenty-four hundredths to the foot, and plaintiff undertook to drive his milk wagon, four feet and ten inches wide and low-hung, past another wagon moving “side by side” of a street car in the opposite direction, and in doing so his wagon turned over and he was injured. *Held,*that the cross-grade, at no place, was a dangerous condition, and the plaintiff having bottomed his case entirely upon the charge that the cross-grade was a dangerous condition and that a wagon could not be safely driven along it, he cannot recover.

*3673. -: -: — : -: Negligence of Driver. If plaintiff’s injuries were due to a failure on his part to exercise ordinary -care in driving his milk wagon along a street he cannot, recover damages from the city.

4. -: -: -: Duty of City.. The law requires cities to exercise such care in respect to the safety of its streets as persons of ordinary prudence would have used unde? the same- or similár circumstances, and no more.

Appeal from St. Louis County Circuit Court.— *Horn' John W. McElhinney,*Judge.

Reversed.

■ *Charles W. Bates*and *Benjamin H. Charles*for appellant.

(1) There was a failure of proof, (a) The cause of action pleaded by the plaintiff was not sustained by his evidence, nor by any evidence in the case. He pleaded a ridge of macadam running lengthwise of the street and just north of the car tracks as being the cause of a dangerous and steep incline toward and into the gutter. Of the two witnesses who saw the accident and testified as to what occasioned it, one said that the outer hind wheel ran over a pile of mud' not so big as a bucket at the same time that the inner front wheel was approaching the gutter • the other, that the wagon struck a crossing and a little hole just beyond it. These facts were not pleaded, (h) The defendant can not be held liable on a cause of action not plea.ded. Hesselbaeh v. St. Louis, 179 Mo. 505; Fuchs v. St. Louis, 167 Mo. 620; Atchison v. Railroad, 80 Mo. 213; Raming v. Railroad, 157 Mo. 506; Gurley v. Railroad, 93 Mo. 445; Haynes v. Trenton, 108 Mo. 132; Waldhier v. Railroad, 71 Mo. 514; R. S. 1899, sec. 798. (c) There was no evidence connecting the defendant, by notice either actual or constructive, with the real cause of the accident as established by the evidence. (2) The actual fall or slant of the street *368was not dangerous and was necessary for proper ■drainage. Assuming plaintiff’s pleaded case to have been sustained by the evidence, nevertheless the accident was one of a class so rare and unexpected that •defendant could not be charged with negligence for failure to guard against it. Hubbell v. Yonkers, 104 N. Y. 439. (3) Plaintiff’s own evidence showed that the •accident was directly due to his contributory negligence. Boberts v. Tel. Co., 166 Mo. 384; Hudson v. Railroad, 101 Mo. 13; Hagan v. Railroad, 150 Mo. 55. (a) It was broad daylight. Wheat v. St. Louis, 179 Mo. 572, 64 L. R. A. 292; Cohn v. Kansas City, 108 ■ Mo. 387. (b) The ground was slippery, and called for extra caution, which plaintiff’s evidence failed to establish, (c) The evidence is that plaintiff did not “notice.” Cloney v. Kalamazoo, 124 Mich. 655; Dale v. Webster, 76 Iowa 370; Tel. Co. v. Jones, 59 Neb. 510. (d) Plaintiff had driven over this very *ground*every ■day for at least two weeks; and he will not be heard to say that he had not known of, or could not at the time have seen, a high and dangerous ridge in the middle of the street and running lengthwise of it (assuming, for the sake of the argument, that this was the cause of the accident). Wheat v. St. Louis, supra; Hutchins v. Prescott, 61 Mich. 252.

*Henry H. Oberschelp*for respondent.

(1) It is not necessary for recovery that the alleged negligence of the city should be the sole and ex-elusive cause of the injury. Yoglesang v. St. Louis, 139 Mo. ,127; Brennan v. St. Louis, 92 Mo. 482. (2) Plaintiff was not guilty of contributory negligence. In fact he was exercising ordinary care. Kossman v. St. Louis, 153 Mo. 293; Carrington v. St. Louis, 89 Mo. '208. (3) The more a street is used, the greater is the ■diligence required of the city to keep it reasonably safe for travel and the greater the right for the traveler to *369presume that the street is safe. Young v. Webb City, 150 Mo. 342. (4) The appellate court will defer to the opinion of the trial court and will not interfere with its discretion. Gidionsen v. Railroad, 129 Mo. 403; Wendler v. People’s H. F. Co., 165 Mo. 527; Finkelnburg’s Mo. App. Prac., p. 109. (5) The verdict was for the right party and the judgment should be affirmed. Sullivan v. Railroad, 133 Mo. 8; Riley v. Railroad, 68 Mo. App. 665.

MARSHALL, J.

This is an action for. damages-for personal injuries sustained by the plaintiff, on February 23, 1900, at about eleven o’clock, a. m., caused by the turning over of a milk-wagon that he was driving along the north side of Chouteau avenue, in front of No. 2775 Chouteau avenue. The plaintiff recovered a judgment for two thousand dollars, and the defendant appealed.

The negligence charged in the petition is, that the •city “raised or caused to be raised the middle portion of said Chouteau avenue at said place, so that said middle portion was much higher than said portion in and along the said gutter at said place, and defendant by its proper officers and agents long prior to said February 23, 1900, until and for sometime after said date, permitted and allowed to remain a steep decline, in said street at said place beginning near the said middle portion and running toward and into said gutter, and said deep depression and said deep decline were dangerous to vehicles passing along said open road,” and that the city was negligent in not remedying the said condition after it knew or by the exercise of ordinary care could have known thereof. The answer is a general denial and a plea of contributory negligence.

The facts in judgment are' these:

Chouteau avenue runs east and west, is a very broad street, and has a double street car track in the *370center thereof. It is one of the most extensively traveled streets in that part of the city. For many years it has been an improved, macadamized street, with stone gutters on the sides. At the place of the accident the land slopes sharply from both north and south, towards the street. In consequence thereof when it rains the water naturally flows toward that part where the accident occurred. To carry off the surface waters rapidly and to prevent their running into the cellars of the houses abutting the street, there are gutters, two feet wide. From the north rail of the north car track to the outer edge of the gutter, it is twelve and one-half feet. Beginning at the said north rail of the north car track, the street declines toward the gutter twenty-five one-hundredths of a foot in the first five feet, fifteen one-hundredths of a foot in the next five feet. At a point ten feet north of the car track the street declines one foot and forty-three one-hundredths in four and one-half feet, the lowest point being the bottom of the gutter *•*and from the bottom to the top of the gutter there is an incline of one foot and thirty-seven one-hundredths in one foot, thus forming the curbstone. At a point thirty-seven feet west of the place of accident there is a sewer inlet, and at that point the decline from the car track to the bottom of the gutter is more gradual and not even as much or as sharp at the gutter as it is at the place of the accident. The construction of the street and the gutter is substantially the same as on other streets of like character.

The plaintiff had been a driver of various kinds of delivery wagons in the city for nearly twenty years before the accident. For a period, ranging from ten days to three or four weeks, according to the testimony of the various witnesses, immediately preceding the accident, he had been driving a milk wagon for the Union Dairy Company, and had driven the wagon every day over the stréet at and near the place of the *371accident, delivering milk, particularly at No. 2771 Chouteau avenue, which was a few feet east of the place of accident. Usually he drove from the east to the west, on the north side of the street, hut on the day of the accident he reversed his course and about eleven o’clock a. m., was driving from the west towards the east on the north side of the street. When about one hundred feet west of the place of the accident, he met a street car and a wagon coming west “side by side.” The wagon was on the north' side of the street and between the car and the gutter. There was, as stated, a space of twelve and a half feet between the car and the outer edge of the gutter. The plaintiff’s wagon was four feet and ten inches wide. The width of the other wagon is not stated. The plaintiff pnlled his horse toward the north and near the gutter so as to pass the other wagon. The night before there had been a freeze, but that morning it had melted and had left the street slippery and muddy. There was a pile of earth in the street, near the place of the accident, about the size of a bucket. Just as the plaintiff’s wagon was passing the other wagon and the car, his wagon, according to some of the witnesses, began to slip towards the gutter, but according to the other witnesses the right hind wheel of the plaintiff’s wagon ran over the said pile of earth, and that caused the left wheels of the wagon “to jump into the gutter,” the wagon turned over, and the plaintiff was injured. According to some of the witnesses the plaintiff’s wagon went from ten to fifty feet after it began to slip and before the left wheels went into the gutter. The plaintiff says he did not see the pile of earth aforesaid, and the eyewitnesses say he did not seem to notice it. The wagon that plaintiff was driving was swung low, with openings on each side, like the ordinary milk wagon, and was not heavily loaded at the time. It does not appear at what rate of speed either of the wagons or the street car were going at the time. At the close of the plaintiff’s case, *372and again at the close of the whole case, the- defendant demurred to the evidence, the court overruled the demurrers, and the defendant excepted. The trial resulted in a verdict for the plaintiff, and the defendant appealed.

I.

The first and principal error assigned here, is the action of the trial court in overruling the demurrers to the evidence, and it is insisted that the facts in judgment do not warrant a judgment against the city.

The plaintiff’s case is bottomed entirely upon the charge that the cross-grade of the street was a dangerous condition and that a wagon could not be safely driven along it, and hence the city was negligent in not remedying it.

For the ten feet immediately north of the car track, the cross-grade, was only forty one-hundredths of one foot. This is less than six inches in ten feet. There can be no question in the minds of reasonable men that such a grade is not dangerous. The plaintiff’s wagon was . four feet and ten inches wide. The width of the other wagon is not given, but deducting the width of the plaintiff’s wagon, four feet and ten inches, from the ten feet aforesaid, leaves a space of five feet and two inches for the other wagon to pass in. And if the other wagon was the same width as the plaintiff’s wagon, it follows that they could have passed each other safely, and there would have been four inches space to spare in the ten-foot space aforesaid.

But in addition to the ten feet aforesaid there were also two feet and six inches more space before the outer edge of the gutter would be reached. The cross-grade of this additional space was about eighty one-hundredths of one foot, or about twenty-four one- . hundredths to the foot. ■ It can not successfully be contended that this was a dangerous grade or condition. Assuming that the left wheels of the plaintiff’s *373■wagon would have to run on this two and a half foot space, which had a cross-grade of twenty-four one-hundredths of an inch to the foot, and' that the right wheels of the plaintiff’s wagon would pass over the portion of the ten foot space aforesaid, which had a cross-grade of forty one-hundredths of one foot in the ten feet, this would not he a dangerous condition, nor. one that common prudence should expect would result in any injury to any one.

There was, therefore, ample space for the plaintiff’s wagon and the other wagon to haye safely passed each other, without the left wheels of the plaintiff’s wagon going into the gutter at all.

But assume that it was necessary for the left wheels of the plaintiff’s wagon to go into the gutter so as to give room to pass the other wagon, and the condition then would he that the left wheels of the plaintiff’s wagon would he one foot and fifty-eight one-hundredths of a foot lower than the right wheels of the plaintiff’s wagon. Even this would not he a dangerous place to drive in if the driver exercised any degree of care at all commensurate with the risk. Of course, if he drove rapidly into and along such a place, the momentum toward the left given the wagon from driving the left wheels suddenly and rapidly into, the gutter would likely cause the wagon to turn over. The plaintiff’s wagon, however, was low swung, and the weight was therefore near the ground, and this would make it harder to turn it over.

Something else than the character of the cross-grade must, therefore, have caused the wagon to turn over. Some of the witnesses say the wheels slipped towards the gutter, and that they continued to slip during the time that the plaintiff drove from ten to fifty feet before the wagon turned over. If this was the case, the plaintiff himself was negligent -in not stopping before the wheels had slipped all the way into the gutter. Other witnesses say there was a pile *374of dirt about as big as a bucket in the street, and that the plaintiff drove so that the right hind' wheel -of the w;agon ran over.the pile, and that this caused the left wheels of the wagon “to jump into the gutter.” The evidence does not disclose, how long a time the pile of earth had been there, nor does it show that the city knew it was there or that it was there for a long enough time before the accident to charge the city with implied notice. The city, therefore, can not be charged with negligence in respect to the pile of earth. Moreover, the plaintiff had driven along that particular part of the. street every day for at least ten days, and he therefore knew or could have known by the exercise of ordinary care, that the pile of earth was there, and as it was no larger than a bucket, he could have easily avoided it, if he had used his senses and the degree of care that is required of one who drives a wagon on a public highway. [Wheat v. St. Louis, 179 Mo. 572.].

Viewed in every possible light and from every conceivable standpoint, there is, therefore, no negligence on the part of the city shown in the case. It is the duty of the city to keep its streets in a reasonably safe condition for persons, exercising ordinary care, to travel over them. But human foresight has never yet been able to prevent accidents, and all that the law requires of a city is that it shall exercise such care in respect to the safety of its streets as persons of ordinary prudence ■ would have used under the same or similar circumstances. It nowhere appears from this record that the city has, in any wise, failed in its duty in this case. The trial court should have sustained the demurrers to the evidence. The verdict is without any foundation in fact sufficient to create a liability on the part of the city, and as no good can come of sending the case back for another trial, the judgment is reversed without remanding the cause.

All concur, except *Robinson, J.,*absent.