Benton v. City of St. Louis

• Decision Date: 31 March 1909
• Citation: 217 Mo. 687,118 S.W. 418
• Parties: BENTON et ux. v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

118 S.W. 418

217 Mo. 687

BENTON et ux. v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

1. MUNICIPAL CORPORATIONS (§ 819)—ACTIONS FOR DEATH—SUFFICIENCY OF EVIDENCE.

In an action for the death of a child drowned in a hole near a defective sidewalk, evidence held to show the city's negligence in maintaining the sidewalk, and that the negligence was the proximate cause of the death, if the sidewalk was in a public street.

2. DOWER (§ 47)—LAND SUBJECT TO—LAND DEDICATED TO PUBLIC USE.

If the fee of land held by a husband passed during his lifetime to a city for public use as a street either by prescription, by express dedication by deed or by acts in pais coupled with acceptance, or by condemnation, the wife's inchoate right of dower was extinguished.

3. MUNICIPAL CORPORATIONS (§ 755) — STREETS—LIABILITY FOR DEFECTS.

If a strip of land was a public city street, the fact that people of the neighborhood or abutters built a sidewalk along the side of it, and from time to time repaired it without ordinance of the city or order from its officers, and constructed a manhole over a sink hole on the land at private expense and turned local drainage into it, would not relieve the city from liability for defects in the street or the sidewalk, or for a dangerous condition arising from a combination of the defects and the unguarded sink hole, since a city owns its streets as a trustee for the public, and is primarily bound to keep them free from defects caused by itself or by third persons, if it has notice of such third persons' acts in time to repair.

4. MUNICIPAL CORPORATIONS (§ 759) — STREETS—LIABILITY FOR DEFECTS.

While the existence of sewer or water mains, a curb line established, or paving are evidence which may conclusively show acceptance of a dedication of the ground for street purposes, their absence or presence does not affect the city's liability for defects in the premises, if they are shown to be a public street, the city being liable for defects negligently allowed to exist whether the street is improved or not.

5. DEDICATION (§ 44) — EVIDENCE — LAND DEDICATED AS STREET.

Evidence held to show that a strip of land 50 feet wide, including a strip upon which a defective sidewalk and sink hole were situated, was dedicated to a city for a public street.

6. DEDICATION (§ 31)—NECESSITY FOR ACCEPTANCE.

Mere dedication is not enough to constitute a street a public street, so as to impose on a city the duty to keep it clear of defects, nuisances, and obstructions caused by the acts of third persons or by the city itself, but there must be an acceptance of the dedication by the city.

7. DEDICATION (§ 35)—ACCEPTANCE.

An acceptance of a dedicated street may be either express or implied.

8. DEDICATION (§ 45)—EVIDENCE—QUESTION FOR JURY—ACCEPTANCE.

Whether the dedication of land for a street was accepted by a city, held, under the evidence, for the jury.

9. MUNICIPAL CORPORATIONS (§ 762) — STREETS—ACQUIESCENCE IN PUBLIC USE.

Where street lamps and poles of public service corporations had been in existence for a long time on a strip of land claimed to be embraced in a public street, the city will be held to have acquiesced in such public use of the strip, whether they were so placed in strict accordance with city charter regulations or not.

10. MUNICIPAL CORPORATIONS (§ 818)—DEFECTS IN STREETS—ACTION FOR DEATH—ADMISSIBILITY OF EVIDENCE—SUBSEQUENT REPAIRS.

In an action against a city for the death of a child caused by a defect in a street, where there was an issue as to whether the locus was in a public street, evidence that the city, in the August or September after the death in May, had made repairs at the place of accident, was competent as tending to show that the city recognized the locus as being in a public street, the remoteness of the repairs going to the weight and not the competency of the evidence.

Appeal from St. Louis Circuit Court; C. Orrick Bishop, Judge.

Death action by H. W. Benton and wife against the City of St. Louis. Plaintiffs took a nonsuit, and, their motion to have it set aside being denied, they appeal. Reversed and remanded.

Carter, Collins & Jones, for appellants. Chas. W. Bates and Chas. P. Williams, for respondent.

LAMM, P. J.

Plaintiffs, father and mother of George Benton, an infant between 6 and 7 years, sue for the wrongful death of George, drowned May 4, 1905, at a place in defendant city known as "Bruno Avenue," laying their damages at $5,000. At the close of their evidence, defendant asks an instruction in the nature of a demurrer. The trial judge signifies his intention to give it. Thereupon plaintiffs request permission to take a nonsuit with leave. Permission going, they take a nonsuit. In due time they move to set it aside, and (their motion denied) they appeal.

The petition charges that Bruno avenue is a public street of defendant; that a duty lay upon defendant to keep it in safe condition; that at a certain point in said avenue there was for a long time a "sink hole, surrounded with a large excavation, ditch, or hole" about 5 feet deep and 12 feet in diameter, and coming up flush with the edge of the north sidewalk on said avenue; that there was no rail on the sidewalk at the point, and the boards of the walk were loose and insecure; that such dangerous and defective conditions were well known to defendant, or could have become known to it by the exercise of ordinary care in time to have made repairs before the death of George, but that it failed and neglected to put the street and sidewalk in safe condition, and that such negligence caused George's death; that in walking upon the sidewalk in said street at said point in the afternoon of May 4, 1905, he stepped or fell from the sidewalk into said excavation and was drowned—the excavation being then filled with water up even with the surface of the sidewalk and water in said street. The answer was a general denial. There is (among minor questions raised) a main proposition in the case in a sharp issue on the question of fact of a street or no street at the locus. Facts vital to the disposition of material questions made on appeal will appear in connection with their determination.

1. If the sidewalk was on a public street, there can be no doubt but what the charge of negligence was well made out, and that such negligence was the proximate cause of the death of George. It was an old, narrow, wooden sidewalk, the worse for wear and decay, built of boards nailed crosswise on stringers, and, at the point in hand, rested elevated on wooden posts several feet high. The boards were loose, the sidewalk tipped south towards a hole running under it, and thence out in the street. This hole was a large and deep affair. The combination of hole, tipped sidewalk, and loose boards shown by the evidence presents an inflamed case of a negligently maintained and dangerous pitfall to adult or child. Not only so, but for a long time, in not unusual rains, the hole filled with water gathered by surface gutters and drainage, and this water arose even with the walk. There had been a heavy but not unusual rainfall on May 4th. The water gathered in the hole caused the sidewalk to float; that is, it (as a whole) seemed not fastened and anchored down securely. George was of such tender age that contributory negligence could not be imputed to him as a matter of law. In fact, there is no plea of contributory negligence, and none that his parents were guilty of negligence in allowing him to be on the street at the time. It seems they had but moved into the neighborhood, and knew nothing of the bad sidewalk or of the hole, or of storm water usually accumulating there; nor did the child. A little bit before he was drowned, George had been seen busying himself placing planks, some distance away up street, for footmen to cross Bruno avenue dryshod. He had on rubber boots and a striped cap. He was next seen making his way on the sidewalk towards this hole—this, a very few minutes before the alarm was given. No human eye saw him drown. But a neighbor woman saw him going toward the spot immediately before. She had but turned to her household duties, and, hearing a cry (a death cry, obviously), hurried out doors. On investigation, his cap was seen floating on the hole of water, and his body was presently fished out by hooking a pole into one of his rubber boots. Some witnesses describe the sidewalk as "wobbly" and "rickety" right close where his body lay. In this condition of proof the jury could reasonably infer that the defects in the sidewalk hard by the treacherous pool caused him to slip or step off and drown. There was proof, too, that these defects were of long standing, so that the city could not claim it had neither actual nor constructive notice in time to remedy them. Hence the demurrer cannot be upheld on the theory that plaintiffs made no case on the facts, if it be once further determined that the issue of fact of street or no street at the locus should have been put to the jury.

2. Plaintiffs' theory of the case is that the sidewalk is on a public street; contra, defendant insists it was on private ground, and hence the city owed no duty to keep it safe. Such controversy (assuming facts already stated) seeks additional facts, viz.: Bruno avenue runs east and west in the west part of the city. McCausland avenue, a public street, crosses it (with a slight jog) east of the locus. Blendon place, another street, comes into it from the north a little ways west of the locus. With a jog, Blendon place then runs on south. At an early date, not disclosed, the land in that region seems to have been platted into blocks of irregular dimensions, and ways were left open between them. At a time, not disclosed by the evidence, but many years ago, a street was dedicated by deed and called "Bruno Avenue." The whole region was then an outlying country district, apparently. Bruno avenue, as dedicated by deed, was...