12 S.W. 342 (Mo. 1889), Harrington v. City of Sedalia

Citation:12 S.W. 342, 98 Mo. 583
Opinion Judge:Barclay, J.
Party Name:Harrington et al., Appellants, v. The City of Sedalia
Attorney:E. J. Smith and W. R. Aldrich for appellants. Louis Hoffman for respondent.
Judge Panel:Barclay, J. Black and Brace, JJ., concurring; Ray, C. J., absent, and Sherwood, J., expressing no opinion.
Case Date:November 04, 1889
Court:Supreme Court of Missouri
 
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Page 342

12 S.W. 342 (Mo. 1889)

98 Mo. 583

Harrington et al., Appellants,

v.

The City of Sedalia

Supreme Court of Missouri

November 4, 1889

Appeal from Pettis Circuit Court. -- Hon. Richard Field, Judge.

Plaintiffs are husband and wife. Their claim is for personal injuries to Mrs. Harrington caused by a defective plank walk in a street in Sedalia. The defense asserts her contributory negligence and that the place where the injury occurred was not part of the public highway.

An addition to the city had been laid out by plat, approved by the municipal authorities and recorded by the land-owner. It represented the place in question as part of a dedicated street. Whether or not the city had opened it to public travel, before the plaintiff was injured, was an important issue in the case upon which the evidence was conflicting.

At the trial the court gave a number of instructions, some of which, with other material matters, will be noted in the opinion.

A verdict for defendant resulted. Plaintiffs appealed.

Affirmed.

E. J. Smith and W. R. Aldrich for appellants.

(1) It is not competent for the city authorities, after having accepted the plat of the addition, duly laid out and recorded, as in this case, thus making Eleventh street at the place in question one of the streets of the city, by simply omitting to do or cause to be done by ordinance, any work on said street at that place, to rid the city of any responsibility on account of any dangerous erection that the adjoining property-owners may put upon said street. The city is liable, under proper restrictions, for the condition of the sidewalk, whether the same was put there by the city or by its direct command, or was put there by the adjoining owners, and permitted by the city. Oliver v. City of Kansas, 69 Mo. 79; Streeter v. City of Breckenridge, 23 Mo.App. 244; Salisbury v. City of Ithica, 94 N.Y. 27; Haire v. City of Kansas, 76 Mo. 438; Carrington v. City of St. Louis, 89 Mo. 209. (2) It was not proper to submit to the jury, as was done by the first instruction for defendant, the question whether Eleventh street, where the injury occurred, "was then and there necessary for the convenience and use of the traveling public," or had or had not been opened for the convenience and use of said public, nor was it proper to instruct the jury as in defendant's third, fourth, and sixth instructions, "that if the street at that place had not been opened by the city, and was not...

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