Baldwin v. City of Springfield

• Decision Date: 03 November 1897
• Parties: BALDWIN v. CITY OF SPRINGFIELD.
• Court: Missouri Supreme Court

42 S.W. 717

141 Mo. 205

BALDWIN v. CITY OF SPRINGFIELD.

Supreme Court of Missouri, Division No. 1.

November 3, 1897.

STREET — ACCEPTANCE OF DEDICATION — NEGLIGENCE.

1. Proof that a strip of land dedicated as a street has been long used by pedestrians, that one street commissioner filled up a hole in it, and that another had the street scraped, is sufficient, in an action against the city for failing to keep it in repair, to require the submission to the jury of the question of the acceptance of the street by the city.

2. Allowing an opening seven feet deep to remain close to a sidewalk in a city street is evidence of negligence in the care of the street.

Appeal from circuit court, Greene county; James T. Neville, Judge.

Action by James R. Baldwin against the city of Springfield. Defendant obtained judgment. Plaintiff appeals. Reversed.

The following are the plats referred to in the opinion:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Peter Helton and Lincoln & Lydy, for appellant. Len Walker and V. O. Coltrane, for respondent.

BARCLAY, C. J.

This action is for $3,000 as damages said to have been sustained by plaintiff in consequence of a fall into an excavation in the city of Springfield, Mo. His claim is that the excavation was in a city street. The defendant denies that claim, and also asserts contributory negligence of the plaintiff in getting into the excavation. At the trial on the circuit the plaintiff was forced to a nonsuit on account of a ruling (in the form of an instruction) that under the law and evidence he could not recover. To the giving of the instruction plaintiff excepted. After the usual motion and other steps in the trial court, he brought the case to the supreme court by appeal.

Plaintiff's testimony tends to prove the following facts: The accident occurred about 9 o'clock p. m., March 28, 1895. Plaintiff had been talking with some one in a store on the northeast corner of Jefferson and Commercial streets in Springfield. When he came out of the store, he walked west a few steps, and then turned north into Jefferson street, as he supposed, but in fact he walked into an unguarded opening, leading to a cellar or basement beneath the store he had just left. The night was dark. The electric lights, which had formerly been used to illuminate the streets in that vicinity, were not lit on that night. There were lights in some of the neighboring stores; but, according to plaintiff's account, there was not light enough to reveal the opening into which he walked. In consequence of stepping unexpectedly into it, he fell, broke his ankle, and suffered the damages which form the subject of his present claim.

Plat "A," which accompanies this opinion, shows the relative positions of Commercial and Jefferson streets. The plat marked "B" indicates the main features of the very place of the accident. The area into which plaintiff fell is about 7 feet deep, 6 feet wide, and 90 feet long (north and south). On the west side (towards Jefferson street) the area is surmounted by a guard rail of iron, extending along the line R — R, at a sufficient height to afford a barrier to warn persons approaching from the west. But on the south side (towards Commercial street) the area is open at the top, where a flight of steps leads to the basement under the Wahl Building. The Wahl Building line on the south is about two feet back of the original north line of the sidewalk of Commercial street. But the intervening space is open, and used by the public as a sidewalk, from the street to the building line. The south line of the basement area coincides with an extension of said building line. If the sidewalk of Commercial street, at the northeast corner of that street and Jefferson, were extended northward along the latter street, with the usual width of 10 feet, the basement area would fall within the space properly belonging to the sidewalk. Along the east side of Jefferson street there is, however, no finished sidewalk, but a cinder path or walk used by pedestrians extends northward to the railroad property. This cinder walk runs along Jefferson street, just west of the railing, on the west of the basement area, from a point where the sidewalk of Commercial street stops on the northeast corner of that street and Jefferson.

The streets mentioned and other highways in the vicinity are all represented on a duly-recorded plat, introduced in evidence, which purports to dedicate the same to public use. It is dated in 1869. Commercial street is an important street at this point. There is a business building on each of the four corners where it and Jefferson intersect. Jefferson street runs from the southern to the northern city limits. But counsel for defendant insist that the city has not accepted the part between Commercial and Chase streets in such a manner as to render the city liable for neglect to keep that part of the street in repair for travel. It is conceded that south of Commercial street and north of Chase street Jefferson...