Curran v. City of St. Joseph

• Decision Date: 02 March 1915
• Docket Number: No. 17231.,17231.
• Parties: CURRAN v. CITY OF ST. JOSEPH.
• Court: Missouri Supreme Court

175 S.W. 584

264 Mo. 656

CURRAN v. CITY OF ST. JOSEPH.

No. 17231.

Supreme Court of Missouri, Division No. 1.

March 2, 1915.

Rehearing Denied April 1, 1915.

Appeal from Circuit Court, Buchanan County; W. K. Amick,) Judge.

Action by Elizabeth, Curran against the City of St. Joseph. From a judgment for the defendant on directed verdict, the plaintiff appeals. Reversed and remanded.

This suit was tried in 1909, and resulted in a verdict for plaintiff for personal injuries sustained in falling into a hole or gully in front of residence known as No. 204 Harvard street, St. Joseph, Mo. The circuit court sustained a motion for a new trial from which ruling plaintiff appealed, the amount being within its jurisdiction, to the Kansas City Court of Appeals, which tribunal affirmed the ruling of the trial court and remanded the cause to the circuit court of Buchanan county. On the retrial, that court gave a peremptory direction to the jury to return a verdict for defendant. From a judgment in accordance plaintiff has appealed to this court, for the reason that the amount claimed in her petition exceeds the pecuniary limit of the jurisdiction of the Kansas City Court of Appeals. The only question presented is whether plaintiff made a case for the jury on the second trial. So much of the evidence as is material to its consideration will be stated and reviewed later.

Mytton & Parkinson, of St. Joseph, for appellant. Frank B. Fulkerson, City Counselor, L. E. Thompson, First Asst. City Counselor, and Herman Hess, Second Asst. City Counselor, all of St. Joseph, for respondent.

BOND, J. (after stating the facts as above).

While the mere act of the dedication of a street and approval thereof, by a municipality, does not, without more, impose upon it the duties as to maintenance and repair which are cast upon a city by law whenever it appropriates a street to the use of the public, yet these obligations do arise the instant a city, with or without such formalities, devotes a highway to the uses of the public by recognizing it as open for travel, or invites the public to use it as a street. And such acts on its part may be shown either by direct or circumstantial evidence. Elliott on Streets & Roads (2d Ed.) §§ 152-154; Benton v. City of St. Louis, 217 Mo. loc. cit. 703, 118 S. W. 418, 129 Am. St. Rep. 561, and cases cited; Ely v. St. Louis, 181 Mo. loc. cit. 729, 81 S. W. 168; Drimmel v. Kansas City, 180 Mo. App. loc. cit. 351, 168 S. W. 280.

In the case at bar, the testimony for plaintiff tended to show...