GEORGE W. CLINKENBEARD, Appellant, v. CITY OF ST. JOSEPH and ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY.
Division One
October 3, 1928
10 S. W. (2d) 54
Richard M. Duncan and William Norris for respondent city; Charles H. Mayer and Roscoe P. Conkling for respondent company.
The undisputed facts disclosed by the evidence are these: Ashland Boulevard is a public street or highway within the corporate limits of the city of St. Joseph extending in a northeasterly and southwesterly direction. Osage Street is also a public street in said city extending in an easterly and westerly direction, and its eastern terminus ends at Ashland Boulevard. About 245 feet northeasterly of the intersection of Ashland Boulevard and Osage Street was an unpaved, winding roadway, extending toward the west from Ashland Boulevard, known as Crescent Drive. Prior to the year 1908 or 1910, the north corporate limit of St. Joseph extended to the intersection of Ashland Boulevard and Crescent Drive, but thereafter the corporate limit of the city was extended northwardly, so as to include Ashland Boulevard for some considerable distance north, or northeasterly, of its intersection with Crescent Drive. The evidence discloses that the place in question is located within a residential district, or section, of the city of St. Joseph. On the westerly side of Ashland Boulevard, extending a distance of some 245 feet between Osage Street and Crescent Drive, was a parkway approximately 17.3 feet in width and 245 feet in length. North, or northeasterly, of Crescent Drive, the paved and improved roadway of Ashland Boulevard was a uniform width of thirty-six feet from curb to curb. Opposite the aforesaid parkway, and south of Crescent Drive, the improved and paved roadway of Ashland Boulevard narrowed to approximately twenty-four feet, or perhaps less, from curb to curb, leaving what is referred to in the evidence as a “goose-neck” along the easterly side of said parkway. The condition aforesaid had existed for about twenty-five years prior to the accident in question. The aforesaid parkway was separated from the paved roadway of
Plaintiff testified that, between eight and nine o‘clock on the evening of August 19, 1925, he was driving alone in a Ford roadster automobile south upon Ashland Boulevard and ran his automobile over the north curb of the aforesaid parkway into the electric light pole owned and maintained by defendant utility corporation in the northeast apex of the parkway, thereby sustaining the injuries for which he seeks recovery.
His testimony on direct examination is as follows: “Q. About what time of day was it you were driving along there? A. Between eight and nine o‘clock. Q. Morning or night? A. Night. Q. Was it after dark? A. Yes, sir. Q. What was the condition of the weather? A. It had rained a little. Q. Were the lights on your automobile burning? A. Yes, sir. Q. Was it raining enough so that you couldn‘t see? A. No, I could see. Q. On which side of Ashland Avenue were you traveling—which direction were you traveling? A. South. Q. Which side of the street were you on? A. About the center of the street. Q. Do you know whether you were more to the right, or to the left, side? A. I was a little more to the right, I believe, than to the left. Q. At the time you were injured, or just prior to that, about how fast were you traveling, if you know? A. I judge twelve or fifteen miles an hour. Q. Were you able to see along the sides of the street as you traveled along there? A. Yes. Q. Were you familiar with the places along Ashland Avenue? A. No, sir, I was not. Q. Are there trees growing along the west side of Ashland Boulevard? A. Yes, sir. Q. What
Cross-examination: “Q. Did you often go or come back by way of Ashland Avenue? A. Yes, sir. Q. You had done that in the daytime lots of times, I suppose? A. Oh, yes. Q. So that you were more or less familiar with Ashland Avenue? A. Well, yes, some. Q. That is, you had driven over it frequently? A. Oh, yes. Q. Had you ever driven over it during the nighttime before this night? A. Yes, sir. Q. Of course, you had driven a car in the rain before? A. Yes, sir. Q. And you knew that the rain made it a little more difficult to see? A. Yes. Q. Your lights were burning good, were they? A. Yes, sir. Q. Were they throwing light forward as far as lights usually do in a rain of that kind? A. Yes, sir. Q. What kind of light did you have on your car?
There was some evidence that the curb separating the parkway from the paved roadway was “red sandstone,” and several witnesses testified in plaintiff‘s behalf that there were no reflectors, lights, or barricade around the pole to indicate its presence, and that it was difficult for a person driving along the paved roadway at night to see the parkway, its surrounding curb and the pole within the parkway.
Plaintiff‘s evidence furthermore tended to show that, on June 30, 1916, the city of St. Joseph had enacted an ordinance to open and widen Ashland Avenue, by a condemnation proceeding, and to remove the parkway between Osage Street and Crescent Drive so as to make the roadway of Ashland Boulevard a uniform width of thirty-six feet, both north and south of Crescent Drive, and that, on September 3, 1919, the city had enacted an ordinance appropriating a sum of money sufficient to pay the damages assessed for the condemnation of the parkway; that the Park Department of the city had caused to be placed upon the pole in question, at different times, two “slow signs,” and that the sign last placed upon the pole had been torn down about a year before the accident in question and had not been replaced; and that residents in the locality had appeared before the Park Department of the city, on at least one occasion prior to plaintiff‘s injury, urging that the parkway be removed and that the street be widened to conform to the enacted ordinances of the city and to the width of the roadway north of Crescent Drive. The work of removing the parkway and widening Ashland Boulevard was not begun by the city, however, until some eleven days after the accident in question.
The evidence of defendants tends to show that, in anticipation of the ultimate removal of the parkway and the widening of the street, and in the month of May, 1925, the defendant utility company had removed all of its own wires from the pole in question, and from other poles within the parkway, and had placed them upon poles which had been erected on the east, or opposite, side of Ashland Boulevard, but that the pole in question had not been removed at that time because the city of St. Joseph was using the pole to carry three or four wires which the city used for its arc street-lighting system; and that the pole in question, with which plaintiff‘s automobile collided, was carrying the city‘s street lighting wires on the night of the accident. Witness Dunn, line superintendent of the defendant utility corporation, testified that “the city had wires on it (the pole) and we couldn‘t take it down until they (the city) took their wires off,” and that the pole was removed from the parkway
The petition of plaintiff, after stating the topographical conditions existing at the time of his injury and at the place of injury, charges both defendants with negligence in that “said defendants knew, or in the exercise of ordinary care should have known, of such condition and the dangerous and not reasonably safe condition of said pole being located in said street under such conditions and of its abandonment, and that by reason thereof said street at such place was dangerous and not reasonably safe for public travel, in ample time, prior to the 19th day of August, 1925, that the same could and should have been removed or guarded or lighted and rendered said boulevard in a reasonably safe condition for public travel prior to said date.” The separate answers of defendants deny generally the averments of the petition and plead that plaintiff was guilty of negligence which directly and proximately contributed to, and occasioned, his alleged injuries.
Appellant assigns error in the giving of the peremptory instruction in the nature of a demurrer to the evidence, thereby forcing plaintiff to take an involuntary nonsuit and to suffer judgment to go against him. Appellant insists that both defendants were guilty of actionable negligence in permitting the parkway, together with the
The uncontroverted evidence herein is that, for some twenty-five years prior to the date of plaintiff‘s alleged injury, there had existed at the place of the accident what is commonly known as a “jog” in Ashland Boulevard; that the improved and traveled vehicular roadway of Ashland Boulevard north of Crescent Drive was thirty-six feet in width from curb to curb, but that the improved and traveled vehicular roadway south of the intersection of Ashland Boulevard and Crescent Drive narrowed to a width of twenty-four feet, or perhaps slightly less, from curb to curb; that, on the westerly side of Ashland Boulevard, between Osage Street and Crescent Drive, there had existed a parkway, within which had been planted trees, grass and other vegetation, which parkway was no part of the improved and traveled vehicular roadway of Ashland Boulevard, but which was separated, designated and marked off from the improved and traveled vehicular roadway by an ordinary stone curb, extending six or eight inches above the surface of the roadway pavement; that, inside said parkway and the enclosing stone curbing thereof, there was a pole which had been erected and maintained by the defendant utility corporation, and which had been used by said defendant for the purpose of carrying its electric lighting circuit wires until approximately three or four months before the date of plaintiff‘s alleged injury, but which pole was still being used by the defendant city, on the date of plaintiff‘s alleged injury, for the pur-
The respondents urge that the establishment, maintenance, and time of removal of the parkway in question is purely a governmental function of the city, and not a ministerial function or duty, the exercise of which governmental function rests within the sound discretion of the municipal authorities, and, therefore, that the defendant municipality is not actionably liable for its failure to exercise such governmental duty or function; that the city has the lawful right to improve and open for public travel, vehicular or pedestrian, only a portion of a dedicated or established street, and when the city, in the exercise of its governmental function, opens and improves for public use only a portion of a street, such city is actionably liable only for its negligence in failing to keep in reasonably safe condition for ordinary public travel and use that portion of the street which it has actually improved and caused to be set aside and thrown open for public use and travel, and is not actionably liable for injuries resulting from defects outside of the improved and traveled portion of the street; that the evidence herein conclusively shows that no injury resulted to plaintiff by reason of any negligence of the city in failing to keep in reasonably safe condition for ordinary public use and travel the improved and traveled
It appears to be well settled by the juristic adjudications in this State that a city has the right to improve and open for public travel only a portion of a platted street, and that a city is not actionably liable for injuries to persons using a portion of the street which the city has not undertaken to improve and to open to public use as a pathway or roadway, although such injuries may be caused by dangerous defects therein. [Ely v. St. Louis, 181 Mo. 723; Marshall v. Kansas City, 297 Mo. 304; Griffin v. City of Chillicothe, 311 Mo. 648.]
In the Griffin case, supra, the defendant city had paved and curbed a strip thirty feet wide in the middle of a platted street, leaving a parkway about thirty feet wide on each side of the paved and curbed roadway. Leading from the paved and traveled portion of the street, and across one of said parkways, was a roadway or driveway onto a lot used as a public hitch yard. A large and deep hole existed in the roadway over said parkway just inside the curb and outside of the paved and traveled portion of the street. Plaintiff drove his team and wagon from the paved portion of the street into the roadway over said parkway, the hole aforesaid having been filled with water from a recent rain, and plaintiff not suspecting that the water covered a deep and dangerous hole, and a front wheel of plaintiff‘s wagon dropped into the deep chuck hole, throwing plaintiff from the wagon seat and severely injuring him, for which injuries he sought recovery from the defendant city. The negligence charged in plaintiff‘s petition was that the city had consented to the use of the roadway over the parkway by the public and had negligently permitted a chuck hole to exist within the lines of the platted street
In Fockler v. Kansas City, 94 Mo. App. 464, 468, it is said: “It will be readily conceded that the city, for obvious reasons, had the right to leave a space between the curbing of the street and the sidewalk unimproved. In other words, it was not compelled to put the entire space occupied by the street in the same uniform condition for travel. . . . It is agreed that trees and other obstacles are usually found in such spaces, and certain authorities are cited to the effect that a city is not liable for injuries occasioned by such obstructions. [See Weinstein v. Terre Haute, 147 Ind. 556; Macomber v. Taunton, 100 Mass. 255; Wellington v. Gregson, 31 Kan. 99; Clark v. Dasso, 34 Mich. 86; Everett v. Council Bluffs, 46 Iowa, 66.] These authorities embrace a sound principle of law, and are entitled to our approval. . . . Every one must take notice that trees for ornamentation, comfort and health, and other useful things, are placed in such spaces, and he who travels therein must expect to encounter them, and he is not entitled to compensation for damages
In Platt v. City of New York, 28 N. Y. Supp. 672, 674, the city had constructed a wire fence, about three and a half feet high, separating a bridle path from a footpath in a public park. After dark on an evening, plaintiff, who was riding horse-back, entered the park and mistook the footpath for the bridle path, and was severely injured when his horse collided with, and fell upon, the wire fence between the two paths. In addition to the fence, there was also a gutter and a curb, plainly separating the bridle path from the footpath. In ruling that there was no actionable liability upon the part of the defendant city, and, therefore, that plaintiff was not entitled to recover for his injuries, the Superior Court of New York said: “The case at bar is therefore analogous to the cases where people have been injured by driving against water hydrants, trees, hitching posts, telegraph poles, awning posts, or stepping-stones situated on the sidewalk immediately adjoining the driveway. In this class of cases, it has been invariably held that there was no liability on the part of the municipality. [Ring v. City of Cohoes, 77 N. Y. 83; Dubois v. City of Kingston, 102 N. Y. 219; Macomber v. Taunton, 100 Mass. 255; Cushing v. Boston, 128 Mass. 330; Arey v. City of Newton, 148 Mass. 598; City of Wellington v. Gregson, 31 Kan. 99.] It is a familiar rule that the question as to how much of a street shall be set aside for the driveway, and how much for the sidewalk, trees, gutter, etc., is, in the absence of a controlling statutory provision, matter of municipal discretion; and I cannot find that any one has ever questioned the right of a municipality to separate its walks and drives by fences. The exercise of this discretion is in the nature of a judicial act; and for this reason it is firmly established that a municipal corporation is exempt from all liability for the manner in which its officers, in good faith, and within the scope of their respective powers, exercise such discretion. [Citing authorities.]”
In Wolf v. District of Columbia, 21 D. C. Appeal Cases, 464, 470, plaintiff, who was injured in falling in the dark over a carriage block placed in a parkway between a roadway and sidewalk, and who sought recovery therefor from the District of Columbia, invoked a statute which made it the duty of the chief of engineers of the District to cause obstructions to be removed from streets and sidewalks in the city of Washington. Said the Court of Appeals of the District of Columbia: “It is clear, the provisions of the statute do not apply to many things that may, in a sense, be regarded as obstructions to the sidewalks of a city. They certainly do not apply to the shade
In affirming the judgment in the case last cited, the Supreme Court of the United States, speaking through Mr. Justice MCKENNA, said (196 U. S. 152, 157): “The second contention of plaintiff in error is that it was the duty of the District of Columbia to so light the street as to show the presence of the stone thereon, the District having full knowledge thereof. . . . The duty of a city to especially illuminate a place where an object is, or to put a policeman on guard by it to warn pedestrians, depends upon the object being an unlawful obstruction. The plaintiff in error can claim nothing from the general duty of the city under the statute to light the streets. The exercise of such duty was necessarily a matter of judgment and discretion, depending upon considerations which this record does not exhibit.”
In Horner v. City of Philadelphia, 194 Pa. St. 542, 543, wherein plaintiff was denied a recovery for injuries suffered in falling over a fire plug placed on a public sidewalk, that court said: “There was no evidence showing that the fire plug was placed in an unusual position or was of defective structure such as to induce the accident for which this action was brought. It was placed within four inches of the curb, and was of the ordinary diameter. As fire plugs are a clear public necessity, and cannot be placed in the open highway, and as they must be placed in such a position as to be easily ac-
In City of Fairbury v. Barnes, 228 Ill. App. 389, 395, the general and applicable rule of law is thus announced: “In general, the local corporation (city) has discretionary power to establish and open streets and public ways, fix their width, determine how much of that width shall be devoted to carriage way and how much to foot way or sidewalk, direct the planting of trees within the limits of streets and public grounds, decide where and how hitching posts shall be set, telegraph, telephone and electric wires and poles erected, and to make all necessary and desirable regulations which are reasonable and manifestly in the interest of public safety and convenience. [3 McQuillin on Mun. Corp., sec. 925.]”
The case of Gulfport Traction Co. v. Manuel, 123 Miss. 266, 276, 85 So. 308, is, perhaps, more nearly like the present case in its substantive facts than any we have found. In that case, plaintiffs’ intestate was killed as a result of the collision of a motorcycle, which he was driving, with a guy-wire post maintained by the traction company to support an electric trolley wire along and within a public street, but outside of the improved and traveled roadway, in the city of Biloxi. Recovery was sought for the death of plaintiffs’ intestate against both the city and the traction company, upon the theory that the pole was negligently erected and maintained in a public street and constituted a dangerous obstruction therein. Plaintiffs recovered a judgment in the trial court, and, in reversing the judgment outright, the Supreme Court of Mississippi, en banc, said: “The appellees sued the city of Biloxi and the Gulfport & Mississippi Coast Traction Company for damages occasioned by the death of William Manuel, the husband of the plaintiff, Eugenia Manuel, and the father of the other plaintiff. William Manuel‘s death was caused by a violent collision with a post situated within the right of way of a street of the city of Biloxi, which post was used as a guy-wire post to support the trolley wire of the Traction Company which operated an electric street car line along the said street. The pole which caused the death of Manuel was situated outside of the traveled portion of the street, but some fourteen feet from the property line on the south side of the street. The street from property line to property line was about thirty-seven feet. Near the center of the street was a shell road seventeen and seven-tenths
The appellant herein has cited a number of authorities which he contends rule the actionable liability of both defendants. We have given careful consideration and analysis to all of such cases, and we are convinced that they are not in point on their facts, regardless of the principles of law announced therein. The greater number of such cases are cases wherein a dangerous obstruction, excavation, or
We are of opinion that neither of the defendants herein is chargeable with actionable negligence in the maintenance of the parkway, or its incidents, including the pole in question, which were entirely and wholly outside of the traveled and improved roadway of Ashland Boulevard set aside and designated by the defendant city for ordinary vehicular travel and use of the public. The evidence herein does not tend to show, in any sense, that the twenty-four foot improved and curbed roadway of Ashland Boulevard on the east side of the parkway, and which had been, and was at the time of plaintiff‘s injury, by reason of its improvement, set aside and designated by the city for ordinary vehicular use and travel, was inadequate to accommodate such public traffic. The improved and traveled roadway was situate in a residential district, and there is no evidence herein that plaintiff was impeded, confused, or interfered with, in the ordinary use of said traveled roadway, by any congestion of traf-
Neither do we think that defendant utility corporation is chargeable with actionable negligence in erecting and maintaining the pole upon the parkway in question. Such pole was erected and maintained with the permission and acquiescence of the city for a necessary public use and service, and was being so used by defendant city, according to the uncontradicted evidence, at the time of the accident, and the evidence also shows that such pole was erected and maintained in the manner and at the place and distance from the curb that similar poles were erected and maintained along the several streets throughout the city of St. Joseph.
Having reached the conclusion that neither defendant is shown by the evidence to have been guilty of actionable negligence with respect to the matters charged and averred in the petition, it becomes unnecessary for us to discuss and rule the question of plaintiff‘s contributory negligence as a matter of law.
It therefore follows that the trial court committed no reversible error in peremptorily instructing the jury to return a verdict for both defendants, and in refusing plaintiff‘s motion to set aside the involuntary nonsuit taken. The judgment nisi must be affirmed, and it is so ordered. Lindsay and Ellison, CC., concur.
PER CURIAM:—The foregoing opinion by SEDDON, C., is adopted as the opinion of the court. All of the judges concur.