Griffin v. City of Chillicothe

• Citation: 279 S.W. 84,311 Mo. 648
• Decision Date: 22 December 1925
• Docket Number: 24967
• Parties: HARRY GRIFFIN v. CITY OF CHILLICOTHE, Appellant
• Court: United States State Supreme Court of Missouri

279 S.W. 84

311 Mo. 648

HARRY GRIFFIN v. CITY OF CHILLICOTHE, Appellant

No. 24967

Supreme Court of Missouri

December 22, 1925

Reversed.

Miles Elliott, Paul D. Kitt and Don Chapman for appellant.

(1) The court erred in refusing the peremptory instructions, in the nature of demurrers, requested by defendant at the close of plaintiff's case and at the close of all the evidence. The evidence not only wholly fails to show that defendant city maintained or had anything to do with the hitch yard but shows beyond denial or contradiction that the city did not maintain or have anything to do with it. Nor was there any evidence that the driveway was devoted by defendant city to public use or that the city was liable for its maintenance. Therefore, the city was not liable for any injury resulting from a defect in the driveway. (2) A demurrer should have been sustained, for the reason that defendant city was not, and could not be held, liable for any injury due to a defect in the driveway leading from the paved portion of the street to the abutting property, because: (a) The city had the right to determine and fix, as it did, the width of its street to be improved for public vehicle travel and in doing so it acted in its legislative capacity. Defendant city was not required to pave, prepare or maintain for public vehicle travel the whole street of one hundred feet in width. The evidence shows conclusively that the driveway and the point at which plaintiff sustained his injury was outside of the part of the street designated provided and wrought by the city for vehicle traffic. The city was without power to deny the abutting owner the right to a passway between the pavement and his property. It could not prevent such owner or his invitees from driving across the parking for access to his abutting property. Such use cannot be said to have been by permission, authority or invitation of defendant or to have constituted a devotion of the driveway to a public use by defendant, and the city could not be held liable for an injury arising from such use. It was for abutting owners to make their own passways or approaches, and the use of such a passway or approach was at the risk of abutting owner, not the city. Ely v. St. Louis, 181 Mo. 730; Marshall v. Kansas City, 249 S.W. 85; Robinson v. Kansas City, 179 Mo.App. 211; Brown v. Glasgow, 57 Mo. 156; Hunter v. Weston, 111 Mo. 184; 4 Dillon on Municipal Corporations (5 Ed.) 1707, Smith on Municipal Corporations, sec. 780; Dries v. St. Joseph, 98 Mo.App. 614; Philbrick v. Pilston, 63 Maine, 477; Elliott v. Mason, 76 N.H. 229; Kelly v. Fond du Lac, 31 Wis. 186; Perkins v. Fayette, 68 Maine, 152, 28 Am. Rep. 84; Smith v. Wendell, 7 Cush. 498; Webster v. Vanceburg, 130 Ky. 320; Harwood v. Oakham, 152 Mass. 425; O'Neil v. New Haven, 67 Atl. 487; Howard v. North Bridgewater, 16 Pick. 189; Martin v. Columbus, 93 Kan. 79, 143 P. 421; Atty. General v. Mayor of Boston, 186 Mass. 209; Kellogg v. North Hampton, 4 Gray, 64; Rice v. Montpelier, 19 Vt. 470; Carey v. Hubbardston, 172 Mass. 106; Drew v. Barr, 70 N.H. 147; Shepardson v. Colerain, 13 Met. 55; King v. Fort Ann, 180 N.Y. 496; Goodin v. Des Moines, 55 Iowa, 67; Brown v. Skowhegan, 82 Maine, 273; Metcalf v. Boston, 158 Mass. 284; Sykes v. Pawlet, 43 Vt. 446; McCook v. Parsons, 108 N.W. 167; 3 Dillon on Municipal Corporations (5 Ed.) secs. 1123, 1124.

(b) The driveway leading from the pavement to the hitch yard was for the sole use and convenience of the abutting owner and his invitees. When plaintiff left the paved portion of the street, which had been provided by the city for vehicle travel, and entered the driveway he ceased to be a traveller on the public street and his use ceased to be a public use. His use became that of an invitee of the abutting owner, who owned the use of the driveway. The abutting owner has no absolute right of access from his property to the pavement. Indeed, he owns the land to the center of the street, and until the city subjects it to a public use, it is under his control. Piculjan v. Union Co., 234 S.W. 1008; 13 R. C. L. (Highways) secs. 106, 107; 29 C. J. p. 540; Goodfellow Tire Co. v. Detroit, 128 N.W. 410; Village of Sandpoint v. Doyle, 95 P. 945 (Ida.) ; Brownlow v. O'Donoghue Bros., 276 F. 636; O'Neil v. New Haven, 67 Atl. (Conn.) 487.

L. W. Reed and Mytton & Parkinson for respondent.

(1) The case was tried solely upon the theory that the liability arising out of the happening of the injury to the plaintiff resulted from a breach of the city's duty to exercise ordinary care to maintain a portion of its street, which the public were invited to use and used, in a reasonably safe condition for travel. This defect in the street was not in front of the Chamber of Commerce tract, but south of it, nor was the defect one of construction or such a one as would give rise to a liability against an abutting property owner. Norton v. St. Louis, 97 Mo. 537. (2) A city is required (regardless of whether any other person is or is not liable on account of the same state of facts) to exercise ordinary care to keep every portion of its streets in a reasonably safe condition for the use of the public in the manner in which the city has invited and consented that the public shall use the street at the particular place in the street. Jackson v. Sedalia, 193 Mo.App. 597; Benton v. St. Louis 217 Mo. 687; Walker v. Kansas City, 99 Mo. 652; Smith v. St. Joseph, 250 S.W. 616; Brigman v. St. Joseph, 251 S.W. 724; Drake v. Kansas City, 190 Mo. 370; Coffee v. Carthage, 186 Mo. 582; Powers v. St. Joseph, 91 Mo.App. 55; Fockler v. Kansas City, 94 Mo.App. 464; Baldwin v. Springfield, 141 Mo. 205; Burnes v. St. Joseph, 91 Mo.App. 489; Heather v. Palmyra, 245 S.W. 390; Stark v. Lancaster, 57 N.H. 88; Stack v. Portsmouth, 52 N.H. 224.

OPINION

Blair, J.

Action in damages for personal injuries. The verdict of the jury assessed plaintiff's damages at the sum of $ 25,000. After compulsory remittitur, judgment was entered for plaintiff in the sum of $ 12,000. Defendant has appealed.

The undisputed facts are that Washington Street is a north-and-south public street in the city of Chillicothe. It is intersected by Ann and Clay streets. Such is the location. Washington Street was originally laid out as a street one hundred feet wide, and was improved and used as a public street throughout the entire width for many years. Several years before the accident in question a strip thirty feet wide in the center of the street had been paved, leaving two parkways between the paved portion and sidewalks, about thirty feet wide. On each side of the paved portion, concrete curbing five or six inches above the top of the pavement and of about the same width had been constructed.

On the east side of Washington Street and between Ann and Clay streets was a lot or lots 120 by 120 feet used as a public hitch yard, where farmers drove their teams and wagons, fed their teams and left them until needed. This lot was leased by the Chillicothe Chamber of Commerce from the owners for the purpose of operating and maintaining such hitch yard. The premises were used for other purposes, such as a meeting place for private business and social purposes, trading horses, etc. A sort of fair or farmers' congress was held there annually for several years. This fair seems to have been sponsored by the Chamber of Commerce. Teams and wagons were sometimes left on the parkway in front of the lot. The use of the hitch yard was free to such of the public as desired to use it.

At three places the curbing on the east side of a brick pavement had been left flush with the pavement when it was constructed or had been cut down to such level to permit ingress to and egress from the abutting property. Two of these openings were opposite the hitch yard maintained by the Chamber of Commerce. A third opening was opposite the north side of the lot adjacent to the hitch yard on the south. The latter opening was used by teams and wagons moving along Washington Street from the south into said hitch yard and by those persons leaving the hitch yard and going south on said street. Openings leading into other abutting property are shown on the plat; but they are not involved here. A well worn dirt roadway extended from the south opening in the curbing over the thirty-foot parking into the hitch yard. There is no proof that such dirt roadway had ever been opened, improved or worked by the city prior to the accident and after the thirty-foot pavement was constructed.

On the morning of April 23, 1921, plaintiff drove his team and wagon north upon Washington Street and turned into the south opening through the curbing to go into the hitch yard. A large and deep hole existed at the time in the roadway over the parking just inside the curb and outside of the paved portion of the street. The right front wheel of plaintiff's wagon dropped into such chuck hole. Plaintiff was seated on the wagon seat and was thrown out upon the ground with such force as to injure him severely. It had rained the night before, and the hole in question was filled with water which concealed its depth. There was evidence tending to show that plaintiff saw the water, but did not suspect that it covered a deep and dangerous hole. Plaintiff testified that it had been two or three months since he had driven into the hitch yard through that opening. There was testimony tending to show that such hole had existed for five or six weeks before the accident occurred.

The foregoing is a sufficient statement of the facts for a consideration of the main contention of defendant that its demurrer to the evidence should have been sustained. Some further statement of the facts may be required for a proper understanding of other questions in the case, if we...