Callaway v. Newman Mercantile Co.

• Citation: 12 S.W.2d 491,321 Mo. 766
• Decision Date: 31 December 1928
• Docket Number: 26829
• Parties: Fannie Callaway, Appellant, v. Newman Mercantile Company
• Court: United States State Supreme Court of Missouri

12 S.W.2d 491

321 Mo. 766

Fannie Callaway, Appellant, v. Newman Mercantile Company

No. 26829

Supreme Court of Missouri

December 31, 1928

Motion for Rehearing Overruled December 31, 1928.

Appeal from Jasper Circuit Court; Hon. Grant Emerson Judge.

Affirmed.

Frank H. Lee and R. A. Pearson for appellant.

(1) An abutter placing any special structures in the sidewalk serving a private purpose or use or as a convenience or easement to his premises, becomes thereby charged with the duty to use and maintain the same in a safe and proper condition. Monsch v. Pellissier, 204 P. 224; Mancuso v. Kansas City, 74 Mo.App. 40; Merrit v St. Louis, 83 Mo. 255; Stevens v. Walpole, 76 Mo.App. 213; Perrigo v. St. Louis, 185 Mo. 287; Jegglin v. Roeder, 79 Mo.App. 435; Bentley v. Hat Co., 144 Mo.App. 617; Kirkpatrick v. Knapp. 28 Mo.App. 431; Biamchetti v. Luce, 2 S.W.2d 129. (2) This burden and liability rests upon the tenant or party in possession actually occupying, using or controlling such premises and appurtenances. O'Brien v. Borroughs, 177 S.W. 811; 29 Cyc. 1204; Kilroy v. St. Louis, 242 Mo. 79; Megson v. St. Louis, 264 S.W. 24; Felhauer v. St. Louis, 178 Mo. 646; Rose v. Fruit Co., 201 Mo.App. 262; 36 C. J. pp. 239, 249, and 242, sec. 952. (3) This rule contemplates not only a safe construction in the first place, but also the keeping and maintaining properly and safely afterward. Sands v. Kansas City, 202 S.W. 296; Jegglin v. Roeder, 79 Mo.App. 434; Stevens v. Walpole, 76 Mo.App. 218; Bentley v. Hat Co., 144 Mo.App. 617; Kirkpatrick v. Knapp, 28 Mo.App. 431; Monsch v. Pellisier, 204 P. 224; Megson v. City, 264 S.W. 24. (4) And defects of this character are within the tenant's duty generally to repair, as such, and he is liable for his negligence in respect thereof whatever the extent of his term, and even though the landlord might also be liable. Williams v. Deutch, 15 Mo.App. 398; Mayer v. Shrumpf, 111 Mo.App. 54; Meade v. Monroe, 173 Mo.App. 722; 36 C. J. 249. (5) A pedestrian may rely on the presumption of the reasonable safety of the sidewalk, without inspecting as to where he steps. Megson v. St. Louis, 264 S.W. 23; Sniff v. City, 245 S.W. 197; Kelly v. Walsh, 177 Mo.App. 504; Forster v. Kansas City, 153 Mo.App. 504; Bentley v. Hat Co., 144 Mo.App. 612. (6) Mere user by the public is not sufficient to establish a street by prescription. It must appear to be adverse and something more than permissive only. 29 C. J. 377, sec. 9; 19 C. J. 887, sec. 53; 2 C. J. 120. (7) Dedication by facts in pais will not be assumed, and clear evidence manifesting an unmistakable intention to abandon to the public is required. Hurt v. Adams, 86 Mo.App. 73; In re Stee, 171 N.W. 219; Smith v. Sedalia, 152 Mo. 297; Anthony v. Building Co., 188 Mo. 719; Detroit v. Myers, 116 N.W. 620; West v. City, 163 S.W. 680; Nachmel v. Clark, 54 A. 1027; Hames v. Frew, 25 N.E. 22; Sullivan v. City, 121 N.E. 788.

Haywood Scott and Ray Bond for respondent.

(1) The duty to maintain public sidewalks in a reasonably safe condition for the use of pedestrians rests upon the city, and there is no duty on the part of the tenant or occupant of premises adjoining a public walk to keep said walk in repair; and there is no liability on the part of the tenant or occupant of a building for injuries sustained by a pedestrian as a result of a defective condition of such walk, where the tenant or occupant did not produce or aid in producing a defect causing the injury. Breen v. Drug Co., 297 Mo. 176; Ford v. Kansas City, 181 Mo. 137; Baustian v. Young, 152 Mo. 317; Russell v. Realty Co., 293 Mo. 428; Megson v. Griswold, 256 S.W. 496; St. Louis v. Conn. Ins. Co., 107 Mo. 92; Norton v. St. Louis, 97 Mo. 537; Hilliard v. Noe, 198 S.W. 436; Welsh v. St. Louis, 73 Mo. 71; Russel v. Town of Columbia, 74 Mo. 480; Smith v. Railway Co., 275 S.W. 55; Wright v. Hines, 235 S.W. 831; Beck v. Brewing Co., 167 Mo. 195. (2) The obligation of the adjoining property owner is to the city, and not to the public, and the obligation to the public to keep a sidewalk in reasonably safe condition rests on the city, and not on the abutting property owner. Cases supra. (3) No formality, or user as a public sidewalk for any period of time, is necessary to constitute a valid common-law dedication of private property for a public sidewalk. All that is necessary is the opening of the sidewalk to public use by the owner and the acceptance of that use, by conduct or otherwise, on the part of the city or the public. Heitz v. St. Louis, 110 Mo. 618; Hanke v. St. Louis, 272 S.W. 933; Stretch v. City of Lancaster, 206 S.W. 389; Proctor v. Poplar Bluff, 184 S.W. 123; Drimmel v. Kansas City, 180 Mo.App. 339; O'Malley v. Lexington, 99 Mo.App. 695; Hill v. Sedalia, 64 Mo.App. 494. (4) And where a sidewalk is constructed on private property, the duty to keep it in a reasonably safe condition rests upon the city. Deland v. Cameron, 112 Mo.App. 704. (5) The fact that a sidewalk was originally constructed by the property owner does not change the rule casting upon the city the duty of keeping the walk in a reasonably safe condition. Oliver v. Kansas City, 69 Mo. 79; Wright v. Hines, 235 S.W. 832; Smith v. Railway Co., 275 S.W. 55. (6) In any event the occupancy and use of a street or sidewalk for a period of ten years, with the owner's acquiescence, vests the street or sidewalk in the public and makes it a public street or sidewalk. Secs. 1305, 10635, R. S. 1919; Clay Products Co. v. St. Louis, 246 Mo. 446; Price v. Town of Breckenridge, 92 Mo. 378; Walker v. Railroad, 198 S.W. 442; Strong v. Sperling, 200 Mo.App. 66.

Seddon, C. Lindsay, C., concurs; Ellison, C., not sitting.

OPINION

SEDDON

Plaintiff sued defendant corporation to recover damages in the sum of $ 15,000 for personal injuries alleged to have been suffered by her in a fall upon a sidewalk in the city of Joplin, which defendant is charged with having negligently permitted to fall into a state of disrepair. At the conclusion of plaintiff's evidence, the trial court, at the request of defendant, gave to the jury a peremptory instruction to return a verdict for defendant, whereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside, and judgment was entered in favor of defendant. After timely, but unsuccessful, procedural steps to set aside the involuntary nonsuit and the judgment thereon, plaintiff was allowed an appeal to this court from the judgment so entered.

The defendant was the lessee, tenant and occupant of a business building, situate on the southwest corner of Main and Sixth streets in the city of Joplin, where it conducted a large department store. The building in question was constructed and is owned by another corporation, the Newman Realty Company, which latter corporation rented or leased said building and premises to defendant under a month to month tenancy. The two corporations have different stockholders, but the majority of the capital stock of the Realty Company is owned and held by individual stockholders of the Mercantile Company, and vice versa. The building has a frontage of approximately one hundred feet on both Main and Sixth streets, and extends five stories above the level of said streets, with a basement below the level of the streets.

The evidence of plaintiff tends to show that the outside, or east, wall of the building in question is located about twelve feet, ten and three-fourths inches from the west curb-line of Main Street; that the sidewalk width on the west side of Main Street is ten feet and one inch; and that the east wall of the building is located thirty-three and three-fourths inches west from the west line of dedicated Main Street, or the east property line abutting said street. In other words, the distance between the east wall of the building and the west curb-line of Main Street is twelve feet and ten and three-fourths inches, and the east ten feet and one inch of said space lies within the street lines of dedicated Main Street, while the west thirty-three and three-fourths inches of said space is located within the property line of the Newman Realty Company. The erection of the said building was completed in October or November, 1910. The Main Street sidewalk on the east side of said building was constructed concurrently with the erection of the building, and by the building contractor, with a full width of twelve feet and ten and three-fourths inches, and extending one hundred feet, north and south, along the east, or Main Street, frontage of the building. Plaintiff claims to have been injured upon this sidewalk on November 20, 1923, or about thirteen years after the completion of said sidewalk. One of plaintiff's witnesses, the city engineer of Joplin, testified that "during all that time, the sidewalk has been used by the public as a sidewalk; no dividing line at this place thirty-three and three-fourths inches from the building; nothing visible to indicate there is a line to cross; the entire width, twelve feet and ten and three-fourths inches sidewalk, has all the time been open to and used by the public as a sidewalk." The uncontradicted testimony of other witnesses is to the same effect, so that it apparently stands conceded that the entire width of twelve feet and ten and three-fourths inches had been continuously used by the public as a sidewalk since its completion in 1910.

The evidence further shows that, in the contruction of the building, the basement was extended easterly and outwardly from the east main wall of the building and across the east property line, so as to extend some five or six feet over the west line of dedicated Main Street. In order to give light into the basement, beneath the sidewalk, the sidewalk was constructed according to a plan or system, known...