Shaw v. St. Louis-San Francisco Ry. Co.

Citation9 S.W.2d 835,223 Mo.App. 1008
PartiesEFFIE SHAW, RESPONDENT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT. [*]
Decision Date28 September 1928
CourtCourt of Appeal of Missouri (US)

Appeal from the Polk County Circuit Court.--Hon. C. H. Skinker Judge.

REVERSED.

Judgment reversed.

E. T Miller, Henry S. Conrad, L. E. Durham, Hale Houts and Ilus M Lee for appellant.

(1) The court erred in refusing to direct a verdict for defendant at the close of plaintiff's evidence, and again at the close of all the evidence. Plaintiff not only failed to show that the way in question was the property of the defendant, but her evidence conclusively established that it was a public way of the city of Springfield which defendant was under no duty to maintain or keep safe for public travel. Wright v. Hines, Director General of Railroads, 235 S.W. 831; Smith v. Railway, 275 S.W. 53; Norton v. St. Louis, 97 Mo. 537; St. Louis v. Insurance Co., 107 Mo. 92; Baustian v. Young, 152 Mo. 317; Maus v. City of Springfield, 101 Mo. 617; Meiners v. St. Louis, 130 Mo. 284; Drimmel v. Kansas City, 180 Mo.App. 344; Heitz v. St. Louis, 110 Mo. 322; Hanke v. St. Louis, 272 S.W. 936; Baldwin v. City of Springfield, 141 Mo. 205.

Hamlin & Hamlin, Herman Pufahl and C. W. Hamlin for respondent.

(1) Every individual has a right, if he wants to do it, to invite the public upon his premises, but when he does so he is bound in law to see that the premises are kept in such condition that the invitation may be safely accepted. Otherwise, he is liable for any injury that may be sustained by reason of his negligence. Roman v. King, 233 S.W. 161; Myers v. Chicago, R. I. & Pac. R. R., 103 Mo.App. 268; Jackson v. Quarry Realty Co., 231 S.W. 1063; Woods v. R. R., 192 Mo.App. 165; Bennett v. L. & N. R. R., 102 U.S. 577, 26 L.Ed. 235, 238. (2) The courts recognize a difference between the dedication of a way to the public and an invitation by the owner of the premises to the public to use a way across his premises. Holmes v. Drew, 25 N.E. 22; Black v. Central R. R. Co., 51 L.R.A. (N.S.) 1215; Beck v. Carter, 68 N.Y. 283, 23 Am. Rep. 175; Bush v. Johnston, 23 Pa. 209. The right of the public to use a street may be deemed abandoned by non-user for a considerable length of time. Derby v. Alling, 40 Conn. 410; Johnson v. Rasmus, 237 Mo. 586; R. S. Mo. 1919, sec. 10635; Corning v. Gould, 16 Wend. 531; Phy. v. Hatfield, 135 Am. St. Rep. 903, et seq. (3) A right obtained by user extends only to the land actually used and no more. Eckerle v. Perry, 297 S.W. 424; District of Columbia v. Lee Robinson et al., 45 L.Ed. 440; Hall v. Flagg Special Road Dist., 296 S.W. 164; Road District v. Bucker, 282 S.W. 71. (4) The question of the intent of the owner to dedicate a portion of his property to public use and an acceptance by the public or the municipality are all questions of fact for the jury to pass upon. Downend v. Kansas City, 71 Mo.App. 529; Drimmel v. Kansas City, 180 Mo.App. 349, par. 1. This question being purely a question of fact and it having been submitted to the jury the verdict is binding on the court. Vette v. Hackman, 292 Mo. 146; Mo. Gas & Elec. Co. v. Rea et al. Milling Co., 279 S.W. 728: Hatten v. St. Louis, 264 Mo. 646; Fetter v. Fidelity & Casualty Co., 174 Mo. 266.

BAILEY, J. Cox, P. J., and Bradley, J., concur.

OPINION

BAILEY, J.

Plaintiff sued defendant railroad company for damages on account of personal injuries suffered by her caused by a fall on a footway underpass in the city of Springfield. Plaintiff obtained a verdict and judgment in the sum of $ 2750 and defendant has appealed.

The first alleged error to be considered is the refusal of the court to direct a verdict for defendant requested at the close of all the evidence. The facts are substantially as follows: Washington avenue is a public street in the city of Springfield, running north and south. It is intersected by yard tracks of defendant railroad running east and west. South of these tracks, at a distance of about 200 feet, Washington avenue is intersected by Commercial street also running east and west. Some distance north of the tracks is Chase street likewise running east and west across Washington avenue. It seems that when Washington avenue was originally laid out and platted, it ended on either side of defendant's right-of-way between Commercial and Chase streets and at that point was on a high fill or embankment. However, the street had, in former times, been built up and used for travel across defendant's right-of-way for some forty or fifty years. In the year 1901 the city of Springfield, at its own expense, built a subway on Washington avenue under said tracks consisting of two roadways, each 13.7 feet in width, separated by piers in the center, the east roadway being for northbound traffic and the west for southbound traffic. At the time of the accident, and for many years prior thereto, Washington avenue was paved and curbed and was an important trafficway in North Springfield. As originally platted, Washington avenue was 82 1/2 feet in width from property line to property line. However, from Commercial street north, and from Chase street south, to defendant's right-of-way, the street had been narrowed to a width of thirty feet from curb to curb and the curb lines were in line with the wall on either side of and supporting the subway. At the time this subway was constructed a walk for pedestrians was built on the west side of the west roadway, the surface of which, was a little above the surface of the roadway. This walkway, by turning slightly to the west at either end, was connected with the sidewalk on the west side of Washington avenue and was built and evidently maintained by the city until a new foot subway was constructed in 1926. The evidence shows this new subway was constructed by the railroad company to enable the city of Springfield to remove the sidewalk on the west side of the vehicular subway and relieve, to some extent, traffic congestion. The sidewalk on the west side of Washington avenue, on either side of defendant's right-of-way, was made to turn or jog to the west, in order to connect with the new foot underpass constructed by defendant just west of the vehicular subway, and was separated from it by a wall some two feet in thickness. This new underpass for pedestrians, in which the accident complained of occurred, was built of concrete, sides, top and bottom, and was a little wider than the sidewalk on the west side of Washington avenue and about 120 feet in length. The evidence showed that Washington avenue sloped from both sides toward this underpass so that in rainy weather dirt and water would collect therein and, since there was no drain, the floor of the underpass would become muddy and slick. At the time the underpass for pedestrians was constructed the city of Springfield had caused conduits for lights to be laid in the walls and, at the time of the accident, was maintaining electric lights therein. It also seems that none of the city's north and south streets in that vicinity were platted so as to indicate they crossed defendant's tracks and that the subway on Washington avenue was the only means of crossing defendant's right-of-way by vehicles for several blocks on either side thereof. There was an overhead crossing for pedestrians about two blocks west of Washington avenue.

Plaintiff lived north of the tracks on Benton avenue and it was her usual custom to walk through this underpass in going from her home, although she had no certain recollection as to the walkway in the vehicular subway in use prior to the construction of the foot subway, but may have used it. On the 9th day of December, 1926, plaintiff, accompanied by her three children, passed through the foot subway. At about 5:30 P. M. on that date, while returning home through the foot underpass, she slipped and fell. She testified that "there was mud and water, 'a little bit of all kinds of debris, papers and things' in the foot subway; that the mud was wet and there was water. That water could run into the subway from the south side or could seep through the walls; that during wet weather one could see it seeping through the walls; that there was no drain in the subway at the time she fell; that the slush, mud and debris she 'mentions' was 'an inch deep anyhow, maybe more.' That in the fall, she got her clothes 'in a terrible condition.' That she fell about 5:30 in the afternoon; that it was getting dark at the time; that there were lights in the subway, but that they were not very bright. That at the time she fell, her two smaller children were ahead of her, and the older daughter behind; she did not think about falling, but she tried to 'go through carefully to keep from splashing the mud on my clothing.' That as she was walking through, it seemed her feet 'just slipped in the mud or slush' and she fell backwards, striking the pavement with her right hip and spine; it was a hard fall; she did not get up; she could hardly move; she told one of the children to stay with her, and the other to run and telephone her father."

The question of user and dedication of the foot underpass is an important one in this case and we think the evidence in regard thereto should be fully set out. The record does not show any formal opening of the underpass to the public. It does tend to show that the purpose for which it was constructed was a public one.

Plaintiff testified that "the subway in which she fell was within a block or two of her home; she traveled through it many times--perhaps every two or three weeks; that she usually walked; sometimes she went over the viaduct on Jefferson street in crossing the tracks." W. W. McMasters, a witness for plaintiff, testified that the foot subway had been built in ...

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