Ely v. City of St. Louis

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Valliant
• Citation: 81 S.W. 168,181 Mo. 723
• Decision Date: 25 May 1904
• Parties: ELY v. CITY OF ST. LOUIS.

81 S.W. 168 181 Mo. 723 ELY
v.
CITY OF ST. LOUIS. Supreme Court of Missouri, Division No. 1. May 25, 1904.

MUNICIPAL CORPORATIONS — STREETS — IMPROVEMENT — ACTS IN GOVERNMENTAL AND MINISTERIAL CAPACITY — NEGLIGENCE — INJURIES TO PEDESTRIANS.

1. A city, in determining what part of a street it will improve and grade, acts in its delegated governmental capacity, and is not answerable to an individual as for a neglect of duty in determining such question.

2. Where an ordinance for an improvement of a street has been passed, the city, in undertaking the work of constructing or reconstructing the street as required by the ordinance, acts in a ministerial capacity, and is therefore liable for injuries to an individual resulting from its negligence in performing such work.

3. Where a city had never improved that part of the street which would ordinarily be used for sidewalk purposes, it was not liable for injuries to a pedestrian caused by a defect in a path which had been worn along such part of the street.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by Charles N. Ely against the city of St. Louis. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Chas. H. Walton and Joseph Wheless, for appellant. Chas. W. Bates and Wm. H. Woerner, for respondent.

VALLIANT, J.

The petition alleges that the plaintiff, on a dark night, while walking along a portion of a public street which had for 10 years been used by pedestrians as a sidewalk, fell into a hole that had been caused by the rains, and received severe injuries; that the hole was about two feet wide and three feet deep, and its existence was known or would have been known to the defendant city if it had used ordinary care; that the nearest street light to the place of accident was about 200 feet distant; that weeds and grass grew so rank along the way that the plaintiff could not see the hole, and fell into it, notwithstanding he was at the time using ordinary care. The answer was a general denial and a plea of contributory negligence.

The plaintiff's evidence tended to show as follows: The street in question had been by ordinance in 1885 established as a public street 80 feet wide. It was in the western suburbs of the city. In the vicinity of the point of the accident there were not many houses; the land on both sides of the street at that point was used for agricultural purposes. In 1891 the city passed an ordinance requiring the street at this point to be partially graded. Pursuant to the ordinance, a wagon road was made on the western side of the street by grading down the natural elevation of the land for a width sufficient for wagons. In cutting down this elevation, that part of the street on the east side was left several feet above the graded wagon road; nothing was done to that part; it was left as nature had made it. But pedestrians had for a long time been walking along the east side, and had worn a path there. There was never any sidewalk there, nothing to designate it as a passway for pedestrians except...