Thrush v. City of Cameron

Philips, P. J.

— This is an action to recover damages against the defendant municipal corporation for erecting a barbed wire across a portion of one of its streets, against which the plaintiff, a_minor, ran his face, and was injured. The plaintiff recovered judgment, from which the defendant prosecutes this appeal. .

This judgment is sought to be sustained in argument at this bar by respondent’s counsel, on two theories: first, that the city erected the barbed wire on a part of its street, which was a dangerous nuisance, and is, therefore, answerable for the injury done the plaintiff by running against the same, without fault on his part; and, *397 second, that the wire, being an obstruction in the street, and a dangerous nuisance, the defendant negligently suffered the same to so remain, whereby the plaintiff was injured, etc.

The cause of action, of course, must be ascertained and determined by the allegations of the petition. Recovery can be had upon no other ground. Duncan v. Fisher, 18 Mo. 404 ; Irwin v. Chiles, 28 Mo. 576 -8; Harris v. Railroad, 37 Mo. 310 ; White v. Rush, 58 Mo. 105 ; Newham v. Kenton, 79 Mo. 382 .

It is quite clear, from the whole scope and tenor of the petition that plaintiff counts alone upon the fact that defendant placed, or caused to be placed, the wire on the street. It is distinctly averred, “that on or about August, 1883, the defendant caused to- be placed a row of posts,” etc., * * * “that afterwards, on or about the-day of September, 1883, the defendant, in disregard of injury to persons passing along said street, and heedlessly disregarding the safety of such persons, fastened, or caused to be fastened, and permitted to be fastened, the end of a twisted strand,” etc., “thus making a barrier across said passage way, obstructing a portion of said street.” It is then averred that this wire was a dangerous nuisance, and that plaintiff ran against it, and was injured, wherefore, etc.

To maintain the issue thus tendered it, therefore, devolved on the plaintiff to prove that defendant placed, or caused to be placed, said wire, as alleged, whereby the injury resulted. What is the proof? It is merely that the street commissioner so placed the wire, and that he said that he was directed thereto by the mayor of the city. There was no proof of the existence of any ordinance respecting this matter, nor of any defining the duties and powers of the street commissioner. Was this sufficient to bind the city ? or, in other words, did this proof sustain the averment that the city — the corporation — did it ? It is conceded by both parties in argument that defendant is a city of the fourth class, under our *398 statute. Art. 5, ch. 89, Rev. Stat. By this statute the entire legislative power is vested solely in the mayor and board of aldermen, whose acts are evidenced alone by ordinance duly enacted. Without which the corporation is not bound, even where it has power to act. Rowland v. City of Gallatin, 75 Mo. 134 , and cases cited; Stewart v. Town of Clinton, 79 Mo. 603 ; Worth v. City of Springfield, 78 Mo. 107 ; Rumsey Mf'g Co. v. Schell City, ante, 175.

The act of the street commissioner, sanctioned by the mayor, in the absence of an ordinance, had no more 'binding force, as the act of the city, than that of any other person. It was not the act of the city. Authorities, supra.

The allegation of the petition was not sustained, and the instruction asked by defendant, in the nature of a demurrer to the evidence, should have been given,

The court, .on the contrary, instructed the jury throughout on the theory that the act of the street commissioner, under the direction of the mayor, was the act of the city, and bound it. This was error.

It is not necessary to discuss the other question, raised by respondent on this hearing, as no such issue •can arise under this petition.

The judgment of the circuit court is reversed, and the cause is remanded.

All concur.