Streeter v. City of Breckenridge
| Decision Date | 08 November 1886 |
| Citation | 23 Mo.App. 244 |
| Parties | HATTIE STREETER, Respondent, v. CITY OF BRECKENRIDGE, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from Caldwell Circuit Court, HON. JAMES M. DAVIS, Judge.
Affirmed.
Statement of case by the court.
This was an action for the recovery of damages on account of injuries to the plaintiff alleged to have been caused by the negligent failure of defendant to keep the sidewalk on one of its streets in a reasonably safe condition.
The street in question was and had been for many years in constant and general use. Upon the street near the place of the accident was the post office. The sidewalk had been constructed many years prior to the accident. There was no evidence that the city had ordered the construction of the sidewalk by ordinance. The sidewalk was a board sidewalk, and, as the evidence introduced by the plaintiff tended to show, was in an unsafe condition. The sidewalk had been in general use ever since its construction.
The defendant examined Doctor Donaldson as a witness. The defendant claims that there was error in the rulings of the trial court shown by the following excerpts from the record:
“Doctor Donaldson testified:
Witness was then asked what was her condition, and what medicine he prescribed for her. Plaintiff objected to the question and the court sustained the objection.”
The bill of exceptions shows that Doctor Donaldson was recalled and testified:
“The defendant then propounded the question to him: ‘What, if anything, was the cause of plaintiff's troubles?’
Plaintiff's counsel objected to the question and to allowing witness to answer the same. The objection was sustained and the court refused to allow witness to answer the same.
"Defendant then asked witness if from his knowledge of plaintiff's condition he would attribute her disability in any way to any fall she may have received in May, 1883. Plaintiff's counsel objected to the question and the court refused to allow the witness to answer the same.
Defendant then asked witness whether he could, independent of any disclosure made to him by plaintiff while his patient, state the cause of her sickness or suffering. Plaintiff's counsel objected and the objection was sustained.
The defendant then asked witness to what extent hysteria was the source of plaintiff's troubles, and what was the extent of her disability. To each of these questions objections were made and sustained.
Witness was then asked whether, when he was first called as a physician, plaintiff informed him that she had fallen, or attributed her then condition to such a fall. Objection was made and sustained to the question.”
The plaintiff had judgment and the defendant has appealed.
CROSBY JOHNSON and F. H BRADEN, for the appellant.
I. Municipal governments cannot delegate their powers. Corporate powers can only be exercised by the authorities specified in the charter. Cooley on Const. Lim. *204; Dill. Mun. Corp., sect. 212, p. 360; St. Louis v. Clemmons, 43 Mo. 389; Thomas v. Boonville, 61 Mo. 282; Saxton v. Beach, 50 Mo. 488.
II. Corporate authorities can only exercise their powers relating to streets by ordinance. Parol evidence is not competent to prove the existence or contents of an ordinance nor the duties of officers. Stewart v. Clinton, 79 Mo. 603; Thompson v. Springfield, 61 Mo. 282; City v. Miller, 66 Mo. 467; Rev. Stat., sect. 5001.
III. While a city is in duty bound to keep its streets free from obstructions and impediments which would endanger travelers, it is under no obligation to put down or maintain walks for their accommodation, until its government has, by ordinance, recognized the necessity and imposed upon the city such duty. Blake v. St. Louis, 40 Mo. 569; Smith v. St. Joseph, 45 Mo. 449; Bowie v. Kansas City, 51 Mo. 454; Craig v. Sedalia, 63 Mo. 417; Haire v. Kansas City, 76 Mo. 438; Bassett v. St. Joseph, 53 Mo. 290. The power to establish sidewalks involves the exercise of legislative powers and the city cannot be compelled to exercise the power. Tritz v. Kansas City, 84 Mo. 632; Keating v. Kansas City, -- Mo. ___.
IV. A city is only bound to keep in repair so much of its streets as may be necessary for the traveling public. Bassett v. St. Joseph, supra; Tritz v. Kansas City, supra. Whether defendant failed in its duty of keeping the street in proper repair was a question for the jury. Craig v. Sedalia, supra.
V. The physician was a competent witness as to the extent of plaintiff's disability. Linn v. Ins. Co., 8 Mo. App. 363. Unless the disclosure was designed to aid the physician in prescribing for his patient it is not privileged. Collins v. Mack, 31 Ark. 684; Campen v. North, 39 Mich. 606.
C. H. MANSUR, also for the appellant.
I. There is in this case no evidence that the city had ever, by ordinance, undertaken to regulate the street; nor any evidence that its authorities had adopted any ordinance for the establishment of the sidewalk, and as the mode for exercising its powers is prescribed by its charter, it follows that the walk was not a public or city sidewalk. Dillon Mun. Corp., sects. 244-47, 610; Cross v. Morristown, 18 N. J. Eq. 305.
II. The court erred in excluding the evidence of the witness, Donaldson, a physician, and refusing to allow him to answer the several questions propounded to him. None of the evidence called for was privileged. Campen v. North, 39 Mich. 606; Railroad v. Martin, 41 Mich. 571; Edington v. Ins. Co., 77 N. Y. 564.
CHAPMAN, and BROADDUS & WAIT, for the respondent.
I. The city has the power to construct and repair sidewalks. It is responsible whether it exercises the power or not. Salisbury v. City of Ithaca, 94 N. Y. 27; City of Richmond v. Long's Adm'r, 17 Gratt. [Va.] 375; Oliver v. City of Kansas, 69 Mo. 79; Allbritain v. Mayor, 60 Ala. 486; Barnes v. Dist. Columbia, 91 U. S. 540; Cleveland v. St. Paul, 18 Minn. 279; Haire v. City of Kansas, 76 Mo. 438; Cooley on Torts, 625; Dillon Mun. Corp., sect. 789.
II. If a stranger erects a sidewalk and the city fails to repair or remove it, the city is liable. And if a city is obliged to take charge of a street, and remove or repair sidewalks therein, then, having, by law, charge of it, they have, in fact, charge of it; and are responsible to the same extent as if it had been formally and legally laid out. Dillon Mun. Corp. [3 Ed.] sect. 1099; Oliver v. City of Kansas, supra; Haire v. City of Kansas, supra; Honfe v. Town of Fulton, 34 Wis. 619; Barnes v. Town of Newton, 46 Iowa, 567; Lafayette v. Lorson, 73 Ind. 367; Stark v. Lancaster, 57 New Hamp. 88; Sewell v. City of Cohoes, 75 N. Y. 45.
III. A city may become responsible for its streets which become such by prescription or dedication. Waterman v. Cuin, 4 Paige (N. Y.) 510; Washburn on Easements, 128, 157. And when the evidence shows a defective sidewalk it is not requisite to give notice of the particular plank causing the injury. Weisenburg v. City of Appleton, 26 Wis. 56; Aurora v. Williams, 90 Ill. 61. In this case the city had notice, and the evidence of it is conclusive. Boone v. City of Richmond, 75 Mo. 437; Russell v. Columbia, 74 Mo. 80; Springfield v. Doyle, 76 Ill. 202. IV. Dr. Donaldson, respondent's physician was not competent as a witness, in this case. Wiler v. Ins. Co., 190 Ind. 92; Gartside v. Ins. Co., 76 Mo. 446; Gratton v. Ins. Co., 92 N. Y. 274; Johnson v. Johnson, 4 Paige (N. Y.) 460; Briggs v. Briggs, 20 Mich. 34. Besides the testimony, in the medical evidence, was immaterial, and hence harmless; and there being evidence to support the verdict this court will not reverse. Sect. 3775, Rev. Stat.; Birney v. Sharp, 78 Mo. 73. Besides the judgment is right, and will not be reversed for error committed. against respondent. Lewis v. Curry, 74 Mo. 51; Moore v. Mount Castle, 72 Mo. 605.
V. It is the duty of a municipal corporation, through its officers and agents to repair a defective sidewalk with all reasonable diligence after its unsafe condition is known to it, or onght to have been known to it, or its officers. Dill. Mun. Corp. [3 Ed.] sect. 1294; Donseizer v. Cook, 40 Ind. 69; Requa v. Rochester, 45 N. Y. 129; Rapho v. Moore,68 Pa. St. 404; Aurora v. Hillman, 90 Ill. 61. After streets are opened they and sidewalks must be kept in repair. Bassett v. St. Joseph, 53 Mo. 290; Craig v. Sedalia, 63 Mo. 417.
VI. This court will not reverse even for error in the instructions where appellant is not injured and the verdict is absolutely for the right party. Noble v. Mount, 77 Mo. 235; Porter v. Harrison, 52 Mo. 524.
The court instructed the jury that it was the duty of the defendant to have kept the sidewalk in a reasonably safe condition. The defendant's counsel urge that such was not the duty of the defendant unless she had, in the manner prescribed by her charter, ordered the construction of the sidewalk, and unless, further, there was not in a reasonably safe condition, outside of the sidewalk, sufficient of the street for public use and convenience. The point, then, is made that for the two reasons named the court erred in declaring, as a matter of law, that it was the duty of the defendant to have repaired the sidewalk.
It is conceded that, if the defendant had constructed the sidewalk, it would have been her duty to have repaired it, except only for the second of the reasons named above. The sidewalk was constructed in the street, and with the knowledge of defendant's officers it was used by the public for purposes of travel for many years before the accident. Under such circumstances it matters not that the defendant did not construct the sidewalk; it was the duty of the defendant to have removed or kept it in repair. So long as the defendant permitted the...
To continue reading
Request your trial