Curran v. City of ST. Joseph
| Decision Date | 09 May 1910 |
| Parties | ELIZABETH CURRAN, Appellant, v. CITY OF ST. JOSEPH, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. L. J. Eastin, Judge.
AFFIRMED.
Order affirmed.
Mytton & Parkinson for appellant.
A city owns and controls its streets as a trustee for the public. It is charged by the law that the primary and bounden duty of keeping them free from nuisances, defects and obstructions caused by itself or third parties if it (in the latter instance) had actual or constructive notice thereof in time to abate the nuisance, remove the obstruction and improve the defect, and that duty it cannot shirk or shift over to or halve with others. Benton v. St. Louis, 217 Mo. 687.
W. B Norris and O. E. Shultz for respondent.
The court did not commit error in sustaining defendant's motion for a new trial. The demurrer of defendant to the evidence should have been sustained, because that part of the street on which the accident happened had never been thrown open by the city for use by the public. Downend v. Kansas City, 156 Mo. 60; Ely v. St. Louis, 181 Mo 723; Rupenthal v. St. Louis, 190 Mo. 213; Benton v St. Louis, 217 Mo. 687.
This action was instituted to recover damages for injuries sustained by plaintiff by falling on what she claims was a sidewalk on the south side of Harvard street in St. Joseph. There was a verdict in her favor, which was set aside and a new trial granted on defendant's motion. Plaintiff thereupon appealed and asks that the verdict be reinstated and that judgment be ordered thereon.
Harvard street had been platted and dedicated to the public and though defendant disputes it, we think it had been accepted by the city. It was a short street, not in the business district, about seven hundred and sixty-six feet in length, lying between King Hill avenue on the west and Lookout street on the east. It was fifty feet wide and a roadway about twenty feet in width had been worked by the city, though no sidewalk had been laid by the city or by its authority. But there were houses and a board sidewalk on the north side, the latter put down by property-owners in front of their property without order from the city. It may be conceded that the street being open and a roadway worked by the city, this sidewalk on the north side was one where the city would be liable for an injury to a pedestrian who may have fallen by reason of negligent defects therein, under the decision of the Supreme Court in Benton v. St Louis, 217 Mo. 687, 118 S.W. 418. But plaintiff was injured on the south side of the street where there were only three frame houses or cottages, built close together, and where no sidewalk had been put down. Weeds and grass grew on that side and just east of the houses that side of the street runs up to a hole, perhaps twenty feet deep, which extends out into the street a distance of thirty feet, leaving the street only twenty feet wide at that place for a roadway and sidewalk on the north. This hole had been made by excavating dirt or clay for a brick yard. There was a pathway on that side of the street, beginning at King Hill avenue and running east over what we will term the space where a regular sidewalk could be put down, for a distance of three hundred and sixty feet, or not quite half the full length of the street. This path extended past the three cottages and in their front the owners had put cinders on it, and that part of it is thereby termed a cinder sidewalk by the plaintiff and some witnesses in her behalf, but it is more properly designated by other witnesses as a cinder path; and the petition does not mention a sidewalk but designates it as a "sidewalk space." Plaintiff lived with her son-in-law and came out of the house to the gate and thence across the street to a neighbor's. A "gully" between two and three feet deep had been washed out across the path in front of her son-in-law's house by surface water coming down from higher ground beyond. As she returned home a little after dark, approaching the gate, she stepped in the gully and received her injury. By way of avoiding a charge of contributory negligence it was shown that she had not been well and had not been out of the house for several weeks prior to this.
The foregoing may be put in less space by stating that plaintiff was injured by falling into a shallow ditch washed out across a pathway leading up through grass and weeds from a street about three hundred feet to the west and which ran along the side...
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