159 Mo. App. 431 | Mo. Ct. App. | 1911
This is a suit for damages for personal injuries plaintiff alleges she sustained in consequence of the negligence of defendant, a municipal corporation, in the construction and maintenance of a way provided for pedestrians on one of the public streets of the city. Plaintiff recovered a judgment for $2500 in the circuit court and defendant appealed.
The injury occurred November 6, 1907, at the corner of Ninth and Broadway streets in Columbia.
The cause of action pleaded in the petition is that defendant “negligently and carelessly failed to provide a fastening or means by which to prevent said platform from slipping and sliding and falling to the pavement, thereby rendering it unsafe and dangerous to the traveling public.”
This charge does not relate to negligence in failing to discover and repair a defect caused by ill repair or accidental displacement of the gutter bridge but to a defect in construction consisting of the absence of fastenings to hold the bridge in position. Plaintiff must recover, if at all, on the cause asserted in her petition and the burden of proof is on her to show that her injury was caused by the omission of defendant to fasten the bridge and that such omission was a breach of ,some ministerial duty defendant owed to pedestrians using that sidewalk and crossing.
In the improvement of its public streets a city “acts in two capacities, first, governmental, second, ministerial.” [Ely v. St. Louis, 181 Mo. l. c. 729.] For the things a city does in the exercise of its governmental powers it cannot be punished in damages for the obvious reason that a lawful exercise of legislative
We recognized this rule in Gallagher v. Tipton, 133 Mo. App. 557, where we said: “If an injury results from a danger inherent in the plan adopted the city is not hable. But if the danger has arisen from negligent construction or maintenance of the place, it is hable.” It is manifest the defect of which plaintiff predicates neghgence was inherent in the plan of street inprovements pursued in Columbia for more than fifteen years and not in the construction or maintenance of the particular gutter bridge under consideration.
Plaintiff appears to think since defendant did not introduce evidence of the. formal adoption by the municipality of a general plan which included the mode of constructing gutter bridges followed for so many years, that we must assume the defect was due to ministerial and not governmental action. The only reasonable interpretation of the evidence before us is that gutter crossings were not provided with appliances for holding them in place and were not fastened down, and the conclusion, is irresistible that plaintiff has failed to adduce any proof that defendant negligently failed in the performance of any ministerial duty it owed the public. In effect the argu