Ely v. City of St. Louis
| Decision Date | 25 May 1904 |
| Citation | 81 S.W. 168,181 Mo. 723 |
| Parties | ELY, Appellant, v. CITY OF ST. LOUIS |
| Court | Missouri Supreme Court |
Appeal from St Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Affirmed.
Chas H. Walton and Joseph Wheless for appellant.
(1) The sidewalk is a part of a public street, and the city is bound to keep it in repair, and is liable for failure to do so regardless of the condition of the roadway of the street. "With respect to its sidewalk along its streets, it was defendant's duty to keep them in a reasonably safe condition for persons who might travel thereon, either by day or night, and if the injury complained of was occasioned by reason of its failure to do so, then it should be held to respond in damages." Goins v. Moberly, 127 Mo. 119; Oliver v. Kansas City, 69 Mo. 79; Streeter v. Breckenridge, 23 Mo.App. 214; Flynn v. Neosho, 114 Mo. 567; Walker v. Kansas City, 99 Mo. 647; Kossman v. St. Louis, 153 Mo. 393; Wiggin v. St. Louis, 135 Mo. 559; Graney v. St. Louis, 141 Mo. 180; Brennan v. St. Louis, 92 Mo. 487; Baldwin v. Springfield, 141 Mo. 205; Baustian v. Young, 152 Mo. 317; Meiners v. St. Louis, 130 Mo. 274; Hill v. Sedalia, 64 Mo.App. 494; Golden v. Clinton, 54 Mo.App. 100. (2) The liability of the city begins when it has opened a street to public use and invited the public to travel on it. It is not necessary that the city should have undertaken to pave the sidewalk, nor otherwise construct it artificially. It is sufficient that the city invites the public use, and the public uses it. All of the sidewalk cases cited under this and the former point are cases of entirely unimproved footways, either of dirt or plank, and none of them had been constructed by the public authorities; they were in a "state of nature," mere dirt footwalks -- or the boards had been put down by neighbors. Maus v. Springfield, 101 Mo. 617; Hunter v. Weston, 111 Mo. 184; Oliver v. Kansas City, 69 Mo. 79; Brennan v. St. Louis, 92 Mo. 487; Vogelgesang v. St. Louis, 139 Mo. 135; Warren v. Independence, 153 Mo. 599; Bassett v. St. Joseph, 53 Mo. 303; Brown v. Mayor, etc., of Glasgow, 57 Mo. 156; Craig v. Sedalia, 63 Mo. 419; Tritz v. Kansas City, 84 Mo. 639; Taubman v. Lexington, 25 Mo.App. 226; Walker v. City of Kansas, 99 Mo. 652; Wiggin v. St. Louis, 135 Mo. 558; Baustian v. Young, 152 Mo. 317; Barr v. Kansas City, 105 Mo. 561; Flynn v. Neosho, 114 Mo. 567; Graney v. St. Louis, 141 Mo. 190; Downend v. Kansas City, 71 Mo.App. 534; S. C., 156 Mo. 60; Meiners v. St. Louis, 130 Mo. 274; Walker v. Point Pleasant, 49 Mo.App. 249; Culverson v. Maryville, 67 Mo.App. 343; Hill v. Sedalia, 64 Mo.App. 494; Roe v. Kansas City, 100 Mo. 193; Golden v. Clinton, 54 Mo.App. 100; Garnett v. Slater, 56 Mo.App. 207; Boyd v. Springfield, 62 Mo.App. 456; Heckler v. St. Louis, 13 Mo.App. 279; Streeter v. Breckenridge, 23 Mo.App. 244; Stephens v. Macon, 85 Mo. 345; Taylor v. Springfield, 61 Mo.App. 263; Swanson v. Sedalia, 89 Mo.App. 127; Baldwin v. Springfield, 141 Mo. 205; Frankfort v. Coleman (Ind.), 65 Am. St. 412.
Chas. W. Bates and Wm. F. Woerner for respondent.
(1) A city which has once assumed to improve a sidewalk or street or a part thereof, and thereby invited the public to travel thereover, owes thereafter a duty to the public to keep such sidewalk or street, or such part thereof as it has assumed to improve, in a reasonably safe condition for ordinary travel in the entire width of such street or part thereof which it has undertaken to improve. But the city under its charter has the right, in its quasi-judicial, or rather legislative discretion, to determine in the first instance whether a street or walk shall be made at all, and if so when and in what manner, and to what extent and width it shall be improved or made. It may determine that only part of a street requires improvement, and need not improve the entire width, and it may conclude a sidewalk in a particular location is unnecessary. Not until it is opened for use does the city become liable. Of the necessity or expediency of exercising such power only the assembly, not a court or jury, is to judge. Heckler v. St. Louis, 13 Mo.App. 279; Young v. Kansas City, 27 Mo.App. 114; Moore v. Cape Girardeau, 103 Mo. 476; Keating v. Kansas City, 84 Mo. 418; McCormack v. Patchin, 53 Mo. 36; Moran v. Lindell, 52 Mo. 233; Kossman v. St. Louis, 153 Mo. 299; Craig v. Sedalia, 63 Mo. 419; Bassett v. St. Joseph, 53 Mo. 303. (2) Hence, so long as the city authorities deem that the time has not yet come when the public conditions require that a street shall be improved, nor that it shall improve its whole width and with a sidewalk flanking it for the use of pedestrians, no duty arises on the part of the city as to that portion of the street or potential sidewalk over which the public travel has not been invited or sanctioned by some appropriate act of the municipal authorities, and respecting which no attempt has been made to have it paved, altered or improved, but which has been left in its original natural state. It follows that for an injury (not connected with some affirmative act by the city) which results solely from the natural condition of an unimproved public street, no action is maintainable against the municipality. Heckler v. St. Louis, 13 Mo.App. 277; Carle v. De Soto, 156 Mo. 443; Hunter v. Weston, 111 Mo. 184; Moore v. Cape Girardeau, 103 Mo. 476; Downend v. Kansas City, 71 Mo.App. 529; Brown v. Glasgow, 57 Mo. 156.
The petition alleges that the plaintiff, on a dark night, while walking along a portion of a public street which had for ten years been used by pedestrians as a sidewalk, fell into a hole that had been caused by the rains, and received severe injuries; that the hole was about two feet wide and three feet deep and its existence was known or would have been known to the defendant city if it had used ordinary care; that the nearest street light to the place of accident was about two hundred feet distant; that weeds and grass grew so rank along the way that the plaintiff could not see the hole and fell into it, notwithstanding he was at the time using ordinary care. The answer was a general denial and a plea of contributory negligence.
The plaintiff's evidence tended to show as follows:
The street in question had been by ordinance in 1885 established as a public street eighty feet wide. It was in the western suburbs of the city; in the vicinity of the point of the accident there were not many houses; the land on both sides of the street at that point was used for agricultural purposes. In 1891 the city passed an ordinance requiring the street at this point to be partially graded. Pursuant to the ordinance a wagon road was made on the western side of the street, by grading down the natural elevation of the land for a width sufficient for wagons. In cutting down this elevation, that part of the street on the east side was left several feet above the graded wagon road; nothing was done to that part, it was left as nature had made it. But pedestrians had for a long time been walking along the east side and had worn a path there. There was never any sidewalk there, nothing to designate it as a passway for pedestrians except the foot-worn path. On both sides of the path weeds grew. In the enclosure to the east was a truck garden, from which, when rain came, the storm water crossing this strip washed out a gully, which the gardener from time to time filled, but it would wash out again. It was that gully into which the plaintiff fell.
The plaintiff lived in that neighborhood and knew that there was no sidewalk at that point, but he also knew the people were in the habit of walking there and he trusted that it was safe for him to do so. He was a travelling man and absent from home the greater part of the time and was therefore not familiar with the actual conditions of the path. Coming out from the city on a street car, as he did on this occasion, he usually got off that car at a street crossing one block east of this street where there was a sidewalk, but on this occasion, as there was no light at that crossing, but was at this, he chose to get off at this crossing and use this path. His wife and daughter ten years old were with him, the child was walking ahead of him; she crossed over the gully and made no remark about it; he followed, walking carefully, but on account of the weeds which shaded the path he did not see the gully, and fell into it, sustaining serious injuries to his left leg.
At the close of the plaintiff's evidence, the court at the request of the defendant instructed the jury that the plaintiff was not...
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