Clinkenbeard v. City of St. Joseph

• Decision Date: 03 October 1928
• Docket Number: No. 27091.,27091.
• Citation: 10 S.W.2d 54
• Parties: GEORGE W. CLINKENBEARD, Appellant, v. CITY OF ST. JOSEPH and ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY.
• Court: Missouri Supreme Court

10 S.W.2d 54

GEORGE W. CLINKENBEARD, Appellant, v. CITY OF ST. JOSEPH and ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY.

No. 27091.

Supreme Court of Missouri, Division One.

October 3, 1928.

Appeal from Buchanan Circuit Court. — Hon. L.A. Vories, Judge.

AFFIRMED.

Lindsay & King for appellant.

(1) The projection in the street, with the pole placed in the line of travel, at about the center of the street, with street lights beyond so placed as to indicate the street was open, without lights, barriers or warning signs, so placed as to be almost invisible, after the city had notice and passed ordinances many years before to remove it, amounts to an obstruction in the street for which both defendants are liable, regardless of any governmental act of the city causing or allowing it, or the right of the defendant company to place its poles along the street, and regardless of the pole being inside the curb. Stern v. International Ry. Co., 220 N.Y. 284; Cleveland v. Bangor Street Ry., 86 Me. 232; Lambert v. Westchester El. Ry., 191 N.Y. 248; McKin v. Philadelphia, 219 Pa. 243; Norwalk v. Jacobs, 27 Ohio Cir. Ct. 691; Arey v. Newton, 148 Mass. 598; Thumberg v. Pueblo, 18 Colo. App. 80; Palestine v. Hassell, 15 Tex. Civ. App. 519; 6 McQuillin, Municipal Corp., sec. 2774; Baldwin v. Springfield, 141 Mo. 205; Wiggin v. St. Louis, 135 Mo. 558; Halpin v. Kansas City, 76 Mo. 335; Dodge v. Kirkwood, 260 S.W. 1012; Burnes v. St. Joseph. 91 Mo. App. 489; Coffee v. Carthage, 186 Mo. 573; Fochler v. Kansas City, 94 Mo. App. 464; Bassett v. St. Joseph, 53 Mo. 290. (2) There was no question of any governmental function of the city involved after the city had recognized the dangerous condition in the street and had performed all governmental functions of the city by passing ordinances many years previous to the accident to remove the condition; it was only the failure to perform a ministerial act by the city employees that allowed this condition to remain in the street. Authorities above. (3) If the theory of a governmental act is involved it is not a bar to this case, when the condition is manifestly dangerous. The obstruction was the result of negligence and also constituted a nuisance. The city had taken over and laid out the entire street and was therefore required to maintain the entire street in a reasonably safe condition for public travel. Hinds v. City of Marshall, 22 Mo. App. 208; Smith v. City of Hayti, 130 Mo. App. 321; Baldwin v. Springfield, 141 Mo. 205; Coffee v. Carthage, 186 Mo. 573; 6 McQuillin, Municipal Corp., sec. 2774.

Richard M. Duncan and William Norris for respondent city; Charles H. Mayer and Roscoe P. Conkling for respondent company.

(1) Plaintiffs's own testimony convicts him of contributory negligence as a matter of law, precluding any recovery herein. It is the duty of an operator of an automobile on the public highway in the nighttime, when darkness compels a reliance upon the headlights for the discovery of obstacles in the roadway, to so limit the speed of the automobile that the same can be brought to a standstill within the distance that such obstacles can be seen by the light of the headlights, and the failure to so limit the speed of the automobile is a want of the required degree of care and is negligence per se. Solomon v. Duncan, 194 Mo. App. 517; Jackson v. Tel. Co., 219 S.W. 655; Central Coal Co. v. Ry. Co., 215 S.W. 914; Castile v. Richard, 102 So. 398; Barnes v. Eastin, 227 S.W. 578; Albertson v. Absbacher, 169 N.Y. Supp. 188; Cloor Transfer Co. v. Street Ry. Co., 181 N.W. 755; Gage v. A.T. & S.F. Co., 137 Pac. 938. (2) The establishment, maintenance or time of removal of the parkway was a governmental function of the city. The St. Joseph Railway, Light, Heat & Power Company placed its pole in the usual and customary place in the parkway by municipal consent and could not remove the pole so long as it was being used by the city in the exercise of its lawful function of lighting the streets. The time of beginning the actual physical work of widening Ashland Boulevard was vested in the sound discretion of the park board of the city, as was the continuance or removal of the are light fed by wires on the light and power company's pole. The light and power company had no choice in the matter and no authority to interfere with the discretion or decision of the park board, and likewise no power to remove the pole until the park board had removed the wires and requested that the pole be removed. When the municipality, by ordinance, declares the boundary lines of a street, such declaration does not mean that all land lying within such lines are then open for public use. If thereafter the city passes an ordinance providing for the improvement or widening of the street so as to render all land lying within the established boundaries fit for use, even then the street is not, by the mere passing of the ordinance, opened for use. In passing ordinances of this character, and in choosing the time of effectuating the ordinance, the city acts in its governmental legislative capacity. It exercises its discretion in defining the lines and extent of the street and in declaring in what manner, at what time and to what extent it shall be improved and given to the public for use. The right of the city to improve and open for public travel only a portion of a platted or accepted street, and the freedom from liability for injuries to persons using a portion of the street which the city has not theretofore undertaken to improve or to open to public use as a street, even though such injuries may be caused by defects therein, are fully established in this State. Ely v. St. Louis, 181 Mo. 723; Marshall v. Kansas City, 297 Mo. 304; Griffin v. Chillicothe, 279 S.W. 84; Walker v. Kansas City, 99 Mo. 652.

SEDDON, C.

Plaintiff seeks to recover damages in the sum of $15,000 from the defendant municipal corporation and the defendant utility corporation for personal injuries alleged to have been suffered by him and to have resulted from the collision of an automobile (which he was driving) with a tall, wooden pole upon which were strung several electric lighting circuit wires, and which pole was owned and maintained by defendant utility corporation in a parkway contiguous to the paved and improved roadway of a public street within the corporate limits of defendant municipality. At the conclusion of the evidence upon a trial of the action, the trial court gave a peremptory instruction, in the nature of a demurrer to the evidence, directing the jury to return a verdict in favor of both defendants; whereupon, plaintiff took an involuntary nonsuit with leave to move to set the same aside, and suffered a judgment to go against him. After an unsuccessful motion to set aside the involuntary nonsuit taken and the judgment entered thereon, plaintiff was allowed an appeal to this court.

The undisputed facts disclosed by the evidence are these: Ashland Boulevard is a public street or highway within the corporate limits of the city of St. Joseph extending in a northeasterly and southwesterly direction. Osage Street is also a public street in said city extending in an easterly and westerly direction, and its eastern terminus ends at Ashland Boulevard. About 245 feet northeasterly of the intersection of Ashland Boulevard and Osage Street was an unpaved, winding roadway, extending toward the west from Ashland Boulevard, known as Crescent Drive. Prior to the year 1908 or 1910, the north corporate limit of St. Joseph extended to the intersection of Ashland Boulevard and Crescent Drive, but thereafter the corporate limit of the city was extended northwardly, so as to include Ashland Boulevard for some considerable distance north, or northeasterly, of its intersection with Crescent Drive. The evidence discloses that the place in question is located within a residential district, or section, of the city of St. Joseph. On the westerly side of Ashland Boulevard, extending a distance of some 245 feet between Osage Street and Crescent Drive, was a parkway approximately 17.3 feet in width and 245 feet in length. North, or northeasterly, of Crescent Drive, the paved and improved roadway of Ashland Boulevard was a uniform width of thirty-six feet from curb to curb. Opposite the aforesaid parkway, and south of Crescent Drive, the improved and paved roadway of Ashland Boulevard narrowed to approximately twenty-four feet, or perhaps less, from curb to curb, leaving what is referred to in the evidence as a "goose-neck" along the easterly side of said parkway. The condition aforesaid had existed for about twenty-five years prior to the accident in question. The aforesaid parkway was separated from the paved roadway of Ashland Boulevard by a curb, some six or eight inches in height above the level of the street pavement, which curb extended along the northerly and easterly sides of the parkway the entire length of the parkway, or approximately 245 feet. Grass, trees and other vegetation were planted and grew within the parkway, and on the westerly side of said parkway was a brick sidewalk for pedestrian use. Near the northeast corner of the parkway, and inside of the curbing thereof, the defendant utility company maintained a cedar pole, about ten or eleven inches in diameter and extending about thirty-four feet in height above the level of the parkway, which is referred to in the record as an "electric light pole." Plaintiff, by his own testimony, fixed the location of the aforesaid pole as being "about a foot" west of the east curb of the parkway and "about three feet" south from the north curb of the parkway. There was some evidence that other similar electric light and telephone poles were located in the parkway and inside the curb enclosing said parkway, but the evidence is not clear whether the telephone poles were removed from the parkway before or after the date of plaintiff's alleged injury.

Plaintiff testified that, between eight...