141 Mo. 205 | Mo. | 1897
— This action is for $3,000 as damages said to have been sustained by plaintiff in consequence of a fall into an excavation in the city of Springfield, Missouri. His claim is that the excavation was in a city street. The defendant denies that claim, and also asserts contributory negligence of the plaintiff in getting into the excavation. At the trial on the circuit, the plaintiff was forced to a nonsuit on account of a ruling (in the form of an instruction) that under the law and evidence he could not recover. To the giving of the instruction plaintiff excepted. After the usual motion and other steps in the trial court, he brought the case to the Supreme Court by appeal.
Plaintiff’s testimony tends to prove the following facts:
The accident occurred about 9 o’clock p, m., March 28, 1895. Plaintiff had been talking with someone in a store on the northeast corner of Jefferson and Commercial streets in Springfield. When he came out
The Wahl .building line on the south is about two feet back of the original north line of the sidewalk of Commercial street. But the intervening space is open and used by the public as a sidewalk, from the. street to the building line. The south line of the base
The streets mentioned and other highways in the vicinity are all represented on a duly recorded plat, introduced in evidence, which purports to dedicate the same to public use. It is dated in 1869. Commercial street is an important street at this point. There is a business building on each of the four corners where it and Jefferson intersect. Jefferson street runs from the southern to the northern city limits. But counsel for defendant insist that the city has not accepted the part between Commercial and Chase streets in such a manner as to render the city liable for neglect to keep that part of the street in repair for travel. It is conceded that south of Commercial street and north of Chase street Jefferson street is a city highway, and that those portions of it are fully recognized by the city as a street.
Plaintiff did not fall into the area while passing along Commercial street. He admits -that he turned the corner to go north on Jefferson to the railway property, where he expected to meet a friend.
As to the sort of user to, which the part of Jefferson street in question has been subjected, the main facts
One street commissioner, between 1892 and 1894, filled up a mud hole in that part of Jefferson street; and another one had the scraper used thereon to remove the dirt, from each side of the street and to put it in the center. The witness, who stated the fact last mentioned, added in reply to a question as to the travel on this portion of Jefferson street: “There is considerable travel on it at times. I was working in the Mercantile building there for six months, that is some time ago, and there is considerable travel from there down to the depot. I have seen hacks go there, and I have seen the mail go there, and express wagons and so on. There are not many people who walk there, simply because it is not a very good road. Some people go right across and go down across Jefferson north when the cars are not in the way; I have myself many times. There is a regular way to the depot down that way. ’ ’ The city council had given, at one time, permission to put in a sewer
We do not consider it necessary to go further into the particulars of the testimony.
1. In the inquiry whether plaintiff has a case to go to the jury he is entitled to every fair and reasonable inference from the evidence he has produced, as well as to the full benefit of all the positive facts he has elicited.
2. A city, having been provided with adequate means to keep its streets in repair, is liable for any want of reasonable care in discharging that duty, if, in consequence of such neglect, anyone in the exercise of due care sustains injury.
3. The mere dedication of a city street to public use by means of a recorded plat does not of itself render the municipality liable for negligent failure to keep the street in repair. It is necessary further to show that the street in question has been accepted before that liability begins. Even an acceptance of a dedication transferring title to the street in trust for the public, does not impose a liability to keep the dedicated land in repair as a street. The latter obligation does not attach until the corporation, in some official and appropriate manner, has invited or sanctioned its use as a street by the public. But such sanction may be given by acts of its proper officers as well as by acts in the form of ordinances. To the extent to which the city has sanctioned the use of such land by the public as a thoroughfare may the city justly be held liable for ordinary care to maintain the thoroughfare in reasonable repair for such use. Rex v. Leake (1833) 5 B. & Ad. 469; Kennedy v. Le Van (1877) 23 Minn. 513; Green v. Elliott (1882) 86 Ind. 53; Hartford v. R. R. (1890) 59 Conn. 250 (22 Atl. Rep. 37); Meiners v. St. Louis
The acts of the street commissioners on the portion of Jefferson street in question, the long continued use by pedestrians of the cinder walk (and the “board walk, which preceded it in point of time) along the east side of Jefferson street, together with many of the other facts already recited, we regard as affording evidence fairly tending to prove that the city had accepted that part of the street as one of its thoroughfares and had sanctioned such a use, at least, as plaintiff was endeavoring to make of it, namely, its use as a passage way to the railway property on the north. The open area, giving access to the basement, was so close to the cinder walk as to warrant an inference of a negligent condition of the highway there, if it were found that the city was responsible for the care of Jefferson street as a public thoroughfare at that point, as a matter of fact.
4. The issue of plaintiff’s own exercise of care in the circumstances we hold is one for the jury.
5. As the case should be tried again, we forbear any extended comment on the weight of the testimony submitted by plaintiff.
In our opinion the learned trial court was in error in giving the instruction for a nonsuit. The judgment is reversed and the cause remanded.