190 Mo. 213 | Mo. | 1905
This is an action for $5,000 damages for personal injuries, alleged to have been received by the plaintiff on the 29th of July, 1900, on the south side of Arsenal street, about 160 feet west of Portis avenue, caused by the plaintiff stepping into an alleged hole or trench running across the sidewalk, which hole is alleged to be eighteen inches deep.
The answer is a general denial, coupled with a plea of contributory negligence. There was a verdict for, the plaintiff for $2,500 and the defendant appealed.
The case made is this:
Arsenal street runs east and west, is eighty feet in width, and is immediately south of Tower Grove Park. It was a macadamized country road at the time of the separation of the city and county of St. Louis. The macadamized portion aforesaid occupies fifty feet of the eighty feet width of the street. Outside of the macadamized portion, the street has never been graded, the city has never exercised jurisdiction over it or invited travel thereon. Weeds to the height of two or three feet grow between the macadamized portion and the outside limits of the street. The macadamized roadway is much higher than the unimproved portion of the street. Along the sides of the street that have not been improved there is a natural water drain. Beginning at Portis avenue, and extending 160 feet westwardly, there is a granitoid sidewalk six feet wide, which was built, supposedly,- by the abutting property-owners. The city did not construct it or order it constructed, and there is no evidence in the record that it was constructed by the authority or permission of the city. On the comer of Portis avenue and Arsenal street there is a vacant lot one hundred and nine feet seven and three-fourths inches. Immediately west thereof there is a two-story brick house, located on a twenty-five foot lot. West of said house there is a twenty-five foot lot, which is used for track gardening. Between that point and Kings Highway, a distance of 1,200 feet, there are four houses at considerable intervals. All the remaining portions of the land abutting Arsenal street on the south, is used for agricultural purposes. Between the end of the granitoid
The plaintiff lived on Magnolia avenue, west of Tower G-rove Park — Magnolia avenue being the north boundary of Tower Grove Park — and had lived there seven or eight years. His daughter lived at 4146 "Wyoming street, which was south and east of the place of the accident. The plaintiff had been in the habit of visiting her about once a week, and in doing so he said
On the 29th of July, 1900, the plaintiff and his wife had visited their daughter and started home about ten o’clock p. m. They traveled north on Portis avenue to Arsenal street, and then turned west on the south side of Arsenal street, walking along the granitoid sidewalk. When they reached the end of the granitoid walk, the plaintiff stepped off of the end thereof into the hole, aforesaid, at the northern end of the drain across the dirt walk above described, and was injured.
The plaintiff’s evidence tends to show that he suffered a fracture of the fibula, with a rupture of the tendons of the ankle; that he was not able to go out of the: house for two months, and that he used crutches for about nine months; that he was totally disabled from work for about three months; that he was a whisky broker, a manufacturer of extracts and flavors for liquors and also of Tamaric Medicinal Bitters, and that his earnings amounted to $1,500 to $2,000 a year.
The defendant’s evidence tends to prove that in August, 1900, — the exact date is not stated, but it was within thirty days after the date of the accident — the plaintiff was seen walking around; that, at times, he would have his crutches, and then he would forget them; that sometimes he would have one crutch, under his right arm, and at other times the crutch would be under the left arm, again he would not have any; that he was seen walking on the Morgan-Ford road, about a mile from his home, within a month after the date of the accident. The plaintiff, himself, said, that about, three weeks after the accident he went to the place of the accident, using his crutches in doing so, and measured the width of the sidewalk, and the depth of the hole.
The defendant’s testimony showed that the city
At the request of the plaintiff the court instructed the jury, inter alia, as follows:
“1. If the jury find from the evidence in this ease that Arsenal street, at the places mentioned in the evidence, was an open, public, traveled street within the city of St. Louis; and if the jury find from the evidence that there was, at said times, a sidewalk on the south side of Arsenal street, graded and paved west from Portis avenue, with granitoid, about 160 feet, and that thence west to Kings Highway, there was a sidewalk unpaved; and if the jury find from the evidence that said sidewalk was used by the traveling public on foot, and if the jury find from the evidence that at the west end of the said granitoid in said sidewalk, there existed a hole or depression; and if the jury find from the evidence that said hole or depression rendered the use of the said sidewalk dangerous, and was an obstruction to travel thereon by the traveling public; and if the*220 jury find from the evidence that on the 29th day of July, 1900, the plaintiff was passing along said sidewalk and that whilst so doing he stepped into said hole and fell and sustained injuries to his person thereby; and if the jury find from the evidence that the city of St. Louis, by its officers or agents having charge of keeping said street and sidewalk in repair, knew, or by the exercise of ordinary care, could have known of said condition of said street in time to repair the same by the exercise of ordinary care, before the plaintiff’s injury, and neglected to do so; and if the jury further find from the evidence that plaintiff, at the time of his injury, was exercising ordinary care, then he is entitled to recover. ’ ’
The defendant excepted to the giving of said instruction, and now assigns the same as error. At the close of the plaintiff’s case, and again at the close of the whole ease, the defendant demurred to the evidence. The court overruled the demurrers and the defendant excepted and now assigns said ruling as error.
I.
The decisive question in this case is, whether the city is liable for the accident to the plaintiff, which occurred within the limits of Arsenal street, but on the portion thereof which the city had never undertaken to improve or to invite the public to use.
Arsenal street, prior to the separation of the city and county of St. Louis, was a county road eighty feet wide. The fifty feet, occupying the central part thereof, was macadamized. The fifteen feet on each side of the macadamized portion, remained in a state of nature. After the city had acquired jurisdiction of the street it continued to keep up the improved portion thereof, but never, at any time, graded the other portions of the street, or threw the same open to public travel or invited the public to use the street. Such unimproved portions were rough, full of holes, grown up
The plaintiff had lived in that neighborhood seven or eight years before the accident and had been in the habit of visiting Ms daughter, who lived south and east of the place of the accident, at least once a week,' and he says he never used Arsenal Street at this point before, and did not know of its condition.
The case made, therefore, is, that the street is eighty feet wide; that the city has improved and thrown
The liability of a city under such circumstances has been frequently discussed by this court, but the latest and clearest exposition of the law applicable to such case is the opinion of Valliant, J., in Ely v. St. Louis, 181 Mo. 723. In that case, as in this, the street was eighty feet wide; the central portion had been graded; the outside portions of the street were in a state of nature; the abutting land was used chiefly for agricultural purposes, and "there were weeds growing in the portion of the street that had not been graded. There was, also, a worn pathway along such ungraded portion of the street, which had been caused by pedestrians walking along the same. There was a gully washed across the pathway. The plaintiff was injured by falling into the gully. The trial court non-suited the plaintiff and the plaintiff appealed. This court disposed of the case in the following clear and exhaustive manner:
“The evidence showed that whilst the city by ordinance established this as a public street, yet it prepared for public use only a wagon road through a part of it, leaving the space that would naturally be the lo*223 cation of sidewalks, if sidewalks were made, in a state of nature. The first question that arises is, was the city in duty bound to make a sidewalk, or, failing to do so, was it responsible for the condition of the path; after that comes the question, was the plaintiff using reasonable care in attempting to travel that path on a dark night?
“A municipal corporation on which is conferred the power to establish public streets and, when established, to construct them for public use, in the exercise of that power acts in two capacities, first, governmental, second, ministerial. When the municipality by ordinance declares that land embraced within certain lines is a public street, then, when the city obtains the title to or easement in that land for that purpose, either by gift or condemnation, it becomes a public street, but it is not necessarily then opened to the public for use. And if after that the city passes an ordinance providing for the improvement of the street so as to render it fit for use, even then it is not, by the mere passing of the ordinance, opened for use. In passing those ordinancs the city acts in its governmental, legislative capacity, and in doing so it exercises its discretion in defining the lines and the extent of the street and in declaring in what manner and to what extent it shall be improved and given to the public for use. If in passing an ordinance to establish a street, for example, near the suburbs where the population is sparse, the municipal assembly should be of the opinion that a road thirty feet wide would be sufficient for the then needs of the public, but in anticipation that in the future the population would become more dense and a street 80 feet wide would become necessary, and should provide in the ordinance for the establishment of a street of that width, no one could say that it was an abuse of its power or an unwarranted exercise of its legislative discretion. And if, after so establishing the street, the city should in the exercise of its legislative discretion, be*224 of the opinion that for the time being a roadway thirty feet wide in the eighty-foot street was all that the public good required and should pass an ordinance providing for the improvement to that extent and no more, no one would have the right to say that the ordinance was unlawful — no one would have a right to insist that the city grade and improve more of the street than in the exercise of its legislative capacity it sees fit to do. In those matters the city acts in its delegated governmental capacity and is not answerable to an individual as for neglect of duty. [Bassett v. St. Joseph, 53 Mo. 290; Keating v. Kansas City, 84 Mo. 415; Kossman v. St. Louis, 153 Mo. 293; Smith on Mun. Corp., sec. 780.]
“But after the ordinance for the improvement of the street has been passed and the city undertakes the work of constructing or reconstructing the street as in the ordinance is required, then the city acts in its ministerial capacity, and if in that capacity it is guilty of negligence to the injury of an individual it is liable. And so after the city has constructed the street or the .sidewalk and has thereby invited the public to use it, the city is bound to keep it in condition to be reasonably safe for use and is liable as for negligence if it fails ito do so. [Moore v. Cape Girardeau, 103 Mo. 470; Hunter v. Weston, 111 Mo. 176.]
“In the case at bar the city lawfully exercised its governmental discretion to grade and prepare for use only the wagon road in part of the street; it was not required to grade and improve the whole eighty-foot space and build sidewalks on it, and, therefore, is not liable for not having done so. The path through the weeds and’ over the uneven surface spoke for itself and told every one that there was no sidewalk there, and it invited no one to use it at the city’s expense. The city was not responsible for the condition of that path and therefore it will net be necessary to decide wheth*225 er by the plaintiff’s own evidence he was negligent in traveling the path under the circumstances.
“The circuit court to ok the correct view in the case.”
Speaking to the question here involved this court, in Hunter v. Weston, 111 Mo. l. c. 184, said: “ ‘A city is not necessarily required to open or put all its streets in a condition<for public travel.’ [Walker v. Kansas City, 99 Mo. 647.] Nor is it liable for the condition of a street which exists merely on paper.' [Moore v. Cape Girardeau, 103 Mo. 470.] ‘The responsibility of the authorities for the condition of a highway begins when they have actually opened it for public travel.’ [Elliott on Roads and Streets, 456.] ‘But the mere fact of establishing a highway by judicial action does not of itself so open it to the public as to render towns liable for accidents that may occur to travelers thereon. After it is thus legally established, it is to be prepared for public use. Labor is to be performed upon it. Bridges are to be built, hills cut down and valleys filled up; obstructions are to be removed and rough places, are to be made smooth.’ [Blaisdell v. Portland, 39 Me. 113.] ‘It may be and doubtless is the case that there are streets and parts of streets in many cities, which are not at present necessary for. the convenience of the public, and that will be brought into use by the growth of the city, . . and that all that is required in such cases is that the city shall see that, as the streets are required for use, they shall be placed in a reasonably safe condition for the convenience of travel..’ [Bassett v. St. Joseph, 53 Mo. 290; Craig v. Sedalia. 63 Mo. 417.] This alley, which was merely designated on paper, having no existence de facto, and never having been opened for public use, defendants owed plaintiff no duty in respect to it as an alley under the said ordinances, and they are not liable in this case. ’ ’
The rules thus laid down in the cases cited in no manner conflict with the principles announced by this
In Walker v. Kansas City, the. city had constructed a bridge and had originally had a railing on both sides of the bridge, but several months before the accident, the railing on the west side was taken away. The planks on that side were uneven, some projecting from one to two feet further out than others. Whilst in that condition the plaintiff, while walking along the west, unprotected, side thereof, fell off of the bridge and was injured. That, therefore, was a case where the city had assumed jurisdiction over the whole street, throwing it open to public use, and failed to keep it in a safe condition.
In the case at bar the city fell heir to the eighty foot street, but it had never thrown open for public use any part thereof except the fifty feet in the center, and there is no question that such portion was in good condition at the time of the accident. The city had never constructed sidewalks, or thrown open to public use the portion of the street where this accident occurred. Some one had constructed a granitoid sidewalk for one hundred and sixty feet; some one had put in a drain under the dirt pathway at the west end of the granitoid sidewalk and had left a space of eighteen inches at each end of the drain narrower than the granitoid sidewalk, and thereby created a pit-fall or dangerous place. But there is nothing in this record that in any manner connects the city with the construction of the granitoid sidewalk, the drain or the dirt pathway, and therefore the city cannot be held liable for any defects therein.
It is always a governmental question whether the whole or only a portion of a street shall be prepared and thrown open to public use. After a street has been thrown open to public use, the duty devolves upon, the public authorities to keep it in repair and safe for persons to travel over the same while exercising ordinary care, but mere use by the public, as for a footpath, of a portion of a street that has never been thrown open to public use, cannot cast such a duty on the city. The conditions and surroundings on the south side of Arsenal street from Portis avenue westwardly to Kings Highway were such that the city authorities in their governmental capacity had not considered that the public necessities required the construction of a sidewalk at that point. To construct the same would have necessitated the filling of that portion of the street so as to raise it to the level of the macadamized part, and as the cost of constructing sidewalks, under the charter of St. Louis, must be paid for by the abutting property-owners, the municipal authorities did not deem it necessary or reasonable to require sidewalks to be constructed at that point where the great bulk of the abutting property was solely used for agricultural purposes. The presence of tall weeds, growing on that portion of the
This case is wholly unlike the case of Wiggin v. St. Louis, 135 Mo. 558, and' cases of like character, where the full width of the street had been thrown open to public use, but there was a dangerous excavation outside the limits of the street but so near thereto as to make it dangerous for persons traveling along the street.
For the foregoing reasons the judgment of the circuit court is reversed