Benton v. City of St. Louis

• Decision Date: 31 March 1909
• Citation: Benton v. City of St. Louis, 217 Mo. 687, 118 S.W. 418 (Mo. 1909)
• Parties: H. W. BENTON and EVA A. BENTON, His Wife, Appellants, v. CITY OF ST. LOUIS
• Court: Missouri Supreme Court

118 S.W. 418

217 Mo. 687

H. W. BENTON and EVA A. BENTON, His Wife, Appellants, v. CITY OF ST. LOUIS

Supreme Court of Missouri, First Division

March 31, 1909

Appeal from St. Louis City Circuit Court. -- Hon. C. Orrick Bishop Judge.

Reversed and remanded.

Carter Collins & Jones for appellants.

(1) Evidence tending to show a large population residing in the locality in question and making use of this street was admissible. Ely v. St. Louis, 181 Mo. 729. (2) Evidence showing that the city had done work upon this street at this particular point was admissible. Dinsmore v. St Louis, 192 Mo. 265. (3) To establish the character of the locality, where the injury occurred, as part of a public street, nothing more was essential than to show that it was in actual possession of the city, and open to, and used by, the public as a thoroughfare at the time. It was not necessary to prove any formal dedication or appropriation of the street. Maus v. Springfield, 101 Mo. 617. (4) The evidence which was offered to show that the city did work on this street at the place in question after the accident occurred, although there might have been no evidence to show that it had in any way assumed jurisdiction over this street prior to the accident, was admissible for the purpose of showing that the defect complained of was one which the city was bound to repair. Brennan v. St. Louis, 92 Mo. 488. (5) The fact that the city authorized the erection of poles upon this so-called ten-foot strip justified a finding that this ten-foot strip constituted part of the public street over which the city had exercised jurisdiction. Johnson v. St. Joseph, 96 Mo.App. 669. (6) The existence of a highway by prescription is generally proved by the parol evidence of witnesses that the road or street in question has been known and used as a highway common to all the people for the necessary period of prescription. Commonwealth v. Coupe, 128 Mass. 63. (7) In Missouri the period of prescription is ten years. Downend v. Kansas City, 156 Mo. 74. (8) Use of the street embracing the tenfoot strip by the public for ten years as a street and the doing of some act by the city inviting or sanctioning its use as a street by the public, imposes upon the city the duty of maintaining the same in reasonable repair for such use. Maus v. Springfield, 101 Mo. 613; Baldwin v. Springfield, 141 Mo. 212. (9) Before the trial court was justified in sustaining the demurrer to the testimony, it must appear that, admitting all the evidence introduced by plaintiffs to be true, and giving them every reasonable inference to be deduced therefrom, the public had not used the street embracing the ten-foot strip as a thoroughfare for more than ten years prior to the death of appellants' child and that the city had done no act inviting or sanctioning its use as a street by the public.

Charles W. Bates and Charles P. Williams for respondent.

(1) The city had a discretion to maintain a roadway only. Ruppenthal v. City, 190 Mo. 213; Bassett v. St. Joseph, 53 Mo. 303; Heckler v. St. Louis, 13 Mo.App. 277. (2) This street was not dedicated or established according to the provisions of the charter. Charter of St. Louis, art. 6, sec. 15. (3) Point 3 in appellants' brief is answered by the case of Ruppenthal v. St. Louis, supra. (4) There is nothing in the proposition of subsequent repair. (5) It does not appear that any officer who had power to bind the city authorized the erection of the poles spoken of in the evidence. (6) There is no evidence with respect to the lights that binds the city. (7) There is no evidence that the city ever undertook to maintain or repair this sidewalk, or to improve that portion of the street for purposes of public passage. (8) The main proposition in this case, and the main contention of the city, is that in the exercise of its reasonable discretion it had a right to maintain in this remote section of the city a roadway only. Under this contention, if it be sound, as we believe it is, it makes no difference whether or not the tenfoot strip standing in the name of George W. Campbell, where the accident in question in this case occurred, was within the technical limits of the public street. Ruppenthal v. City, 190 Mo. 213; Bassett v. St. Joseph, 43 Mo. 303; Heckler v. St. Louis, 13 Mo. 277.

OPINION

LAMM, P. J.

Plaintiffs, father and mother of George Benton, an infant between six and seven 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 five feet deep and twelve 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.

I. 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.

II. Plaintiff's 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...