Carruthers v. St. Louis, No. 34210.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Hyde
• Citation: 111 S.W.2d 32
• Parties: SOPHIA CARRUTHERS v. CITY OF ST. LOUIS, a Municipal Corporation, Appellant, WEBB-BOONE PAVING COMPANY, a Corporation, Defendant.
• Decision Date: 14 December 1937
• Docket Number: No. 34210.

111 S.W.2d 32 SOPHIA CARRUTHERS
v.
CITY OF ST. LOUIS, a Municipal Corporation, Appellant, WEBB-BOONE PAVING COMPANY, a Corporation, Defendant. No. 34210. Supreme Court of Missouri. Division One, December 14, 1937.^*

Appeal from Circuit Court of City of St. Louis. — Hon. Charles B. Williams, Judge.

REVERSED.

Edgar H. Wayman and Louis A. McKeown for appellant.

(1) Where a plaintiff, while riding in an automobile, was injured after climbing a parkway curb and crashing into an object outside of the traveled portion of an improved roadway, separated by curbs, recovery against the city is not warranted. Clinkenbeard v. St. Joseph, 10 S.W. (2d) 54; State ex rel. Springfield v. Cox, 327 Mo. 152; Griffin v. Chillicothe, 311 Mo. 648; Herndon v. Salt Lake City, 95 Pac. 646, 34 Utah, 65; Ely v. St. Louis, 181 Mo. 723. (a) The city cannot be charged with negligence in failing to maintain a barrier, warning sign or reflector on a parkway or other boundary line of its streets. Briglia v. St. Paul, 158 N.W. 794, 134 Minn. 97; Greenland v. Des Monies, 221 N.W. 953. And this is particularly true with reference to the State highway as the Legislature forbids such authority. Sec. 8107, R.S. 1929; Howard v. Knutson, 77 S.W. (2d) 158. (b) The city was not negligent in building or maintaining the parkway in question. It was built in accordance with legislative enactment and not in its ministerial capacity. Clinkenbeard v. St. Joseph, 10 S.W. (2d) 54; State ex rel. Springfield v. Cox, 327 Mo. 152; Ely v. St. Louis, 181 Mo. 723; Griffin v. Chillicothe, 311 Mo. 648; Boyd v. Kansas City, 291 Mo. 622; Marshall v. Kansas City, 297 Mo. 304; Lyman v. Pottsdam, 228 N.Y. 398, 127 N.E. 312; Dougherty v. Horseheads, 159 N.Y. 154, 53 N.E. 799. The city is not required, in the exercise of its governmental function and discretion, to remove a parkway and widen the roadway for vehicular traffic and is not actionably liable for its failure so to do. Herndon v. Salt Lake City, 95 Pac. 646; Megargee v. Philadelphia, 153 Pa. 340, 19 L.R.A. 221. The parkway being a lawful and usual obstruction, there is no duty on the city to light the same, and there is no actionable negligence for failure to light. Seibert v. Mo. Pac., 188 Mo. 657; Wolff v. District of Columbia, 196 U.S. 152, 49 L. Ed. 426; Teager v. Flemingsburg, 109 Ky. 746, 60 S.W. 718. (c) The city of St. Louis owed no duty to plaintiff to maintain a state highway. Secs. 8092-8130, R.S. 1929; Howard v. Knutson, 77 S.W. (2d) 161. The city of St. Louis had no control or authority over the highway in question and had no power or jurisdiction to place signs, reflectors, barriers or lights upon or about a parkway within the State highway. Sec. 8107, R.S. 1929. Having no control or authority over the highway, the city cannot be convicted of negligence in failing to attempt to exercise authority over it for the reason that it was not under duty to do so. Zitzman v. Glueck Box Co., 276 S.W. 25. (d) The city owes no duty to a particular traveler to place warning signs, lights or barriers throughout the traveled way for obstructions such as a steam shovel not in the traveled way. Hunt v. St. Louis, 278 Mo. 213; Julia Bldg. Assn. v. Bell Tel. Co., 88 Mo. 258. Permitting the placing of materials, implements and machinery for the repairing and improvement of streets outside of the traveled way is not negligence. District of Columbia v. Moulton, 182 U.S. 576; Elam v. Mt. Sterling, 117 S.W. 250. (2) The city is not an insurer, and it is not obligated to keep its streets in an absolutely safe condition, but only reasonably so, for the use of persons using them in a proper way and in the ordinary mode. Nimmo v. Perkinson Const. Co., 85 S.W. (2d) 98; Horan v. Independence, 176 S.W. 106. Failure to so define the city's duty enlarges the issues and enlarges the duty of the city by making it an insurer. The city is only required to keep that portion of the street in a reasonably safe condition for travel, which it has paved and designated for that purpose. 7 McQuillin on Mun. Corps., sec. 2931; Clinkenbeard v. St. Joseph, 10 S.W. (2d) 54; State ex rel. Springfield v. Cox, 327 Mo. 152; Ely v. St. Louis, 181 Mo. 723; Marshall v. Kansas City, 297 Mo. 304; Herndon v. Salt Lake City, 95 Pac. 646; Lyman v. Pottsdam, 228 N.Y. 398, 127 N.E. 312; Dougherty v. Horseheads, 159 N.Y. 154, 53 N.E. 799.

Anderson, Gilbert, Wolfort, Allen & Bierman for respondent.

(1) The appellant city, in the exercise of its ministerial powers, planned, constructed and maintained the roadway in a negligent manner and failed in its bounden duty to keep the highway reasonably safe for travel and for such negligence is liable. Boyd v. Kansas City, 291 Mo. 642; Ely v. St. Louis, 181 Mo. 730; Birkhimer v. Sedalia, 200 S.W. 300. (a) The city is liable, irrespective of the place where the actual injury occurred, so long as its negligence in the construction or maintenance of the roadway caused the plaintiff to be injured. Boyd v. Kansas City, 291 Mo. 643; Williams v. Mexico, 224 Mo. App. 1228; Benton v. St. Louis, 217 Mo. 700; Wiggin v. St. Louis, 135 Mo. 566; Loewer v. Sedalia, 77 Mo. 444; Ballentine v. Kansas City, 126 Mo. App. 133; Chance v. St. Joseph. 195 Mo. App. 1. (b) The city having constructed and maintained the roadway in a negligent manner so that it was dangerous to travelers at night, without warning signals, lights, reflectors, or the like, as liable for such negligence. Boyd v. Kansas City, 291 Mo. 643; State ex rel. Springfield v. Cox, 327 Mo. 160; Benton v. St. Louis, 217 Mo. 700; Wiggin v. St. Louis, 135 Mo. 566; Flynn v. Neosho, 114 Mo. 567; Loewer v. Sedalia, 77 Mo. 444; Williams v. Mexico, 224 Mo. App. 1228; Chance v. St. Joseph, 195 Mo. App. 6; Ballentine v. Kansas City, 126 Mo. App. 136; Cunningham v. Springfield, 31 S.W. (2d) 125; Birkhimer v. Sedalia, 200 S.W. 298; Robison v. Kansas City, 181 S.W. 1004. (c) The plan, construction and maintenance of the concrete apron, black line and west end of the parkway was the exercise of a ministerial and not a governmental function. Boyd v. Kansas City, 291 Mo. 641; Birkhimer v. Sedalia, 200 S.W. 298; Ely v. St. Louis, 181 Mo. 730. (d) The city was not relieved of its duty to construct and maintain the highway in a reasonably safe condition by virtue of any statute or otherwise. Boyd v. Kansas City, 291 Mo. 643. (e) The city owed a duty to travelers to maintain lights, signals or barriers, etc., for dangers outside the traveled way because the highway as constructed and maintained was dangerous without them and not reasonably safe. Boyd v. Kansas City, 291 Mo. 643; State ex rel. Springfield v. Cox, 327 Mo. 160; Benton v. St. Louis, 217 Mo. 700; Wiggin v. St. Louis, 135 Mo. 566; Flynn v. Neosho, 114 Mo. 567; Loewer v. Sedalia, 77 Mo. 444; Williams v. Mexico, 224 Mo. App. 1228; Chance v. St. Joseph, 195 Mo. App. 6; Ballentine v. Kansas City, 126 Mo. App. 136; Cunningham v. Springfield, 31 S.W. (2d) 125; Birkhimer v. Sedalia, 200 S.W. 28; Robison v. Kansas City, 181 S.W. 1004.

HYDE, C.

This case, recently reassigned to the writer, is an action for damages for personal injuries. Plaintiff had a verdict for $13,000 against defendant city. Plaintiff took an involuntary nonsuit as to the other defendant, but has not appealed from the judgment of dismissal. Defendant city has appealed from the judgment entered on the verdict.

The city assigns as error the overruling of its demurrer to the evidence at the close of the case. Plaintiff was injured when an automobile, in which she was riding with her husband driving, ran over the curb of a parkway in the center of the street and struck a steam shovel therein. The negligence charged and submitted against the city was negligent construction and maintenance of the paved portion of the street by making and leaving a black line in the center thereof which led directly to and ended at the curb in front of the parkway; and also failure to place barriers,

111 S.W.2d 33

lights, reflectors or other warning devices to mark the parkway curb or to mark the location of the steam shovel therein.

The place of the accident was on Watson Road, a street opened by the city in 1917, running southwest to the city limits, originally with a forty-foot right of way which was later widened to eighty feet. In 1926, a pavement seventeen and one-half feet wide and was laid along the west side. In 1929, a pavement of equal width was begun on the east side, leaving a twenty-foot parkway between the two paved portions. A curb six or eight inches high was built around the parkway. Outside the city limits, in 1929, Watson Road remained "a rather narrow lane — a 40-foot right of way." Cinders had been put on a small section of it. When Watson Road was widened inside the city, the plan was for it "to form a major thoroughfare of the city eventually." The paving on the east side was completed in August, 1931, and at that time the State Highway Department had commenced to construct U.S. Highway 66 to connect with it. The State highway was opened in May, 1932. It was forty feet wide with four lanes for travel marked by painted black lines. Watson Road including the parkway and the two paved roadways was fifty-five feet wide. From the connection at the city limits. "Watson Road widens 7½ feet in a distance of 102 feet from Route 66 (on each side). A car would, if following on a parallel line with the south (or east) line of 66, only have to turn 7½ feet in 102 feet to conform to the new line of Watson Road. The parkway is 86½ feet from the city limits at the center of the road. It is 525 feet from the crest of the hill (outside the city) to the curb at the parking strip. The grade is about 4½ per cent." There were street lights on standards placed alternately along each side of Watson Road inside the city. One of these was between the end of the parkway and the city limits.

The city's pavement between the parkway and the city limits was laid in sections and the...