Griffin v. City of Chillicothe
| Citation | 279 S.W. 84 |
| Decision Date | 06 October 1925 |
| Docket Number | No. 24967.,24967. |
| Parties | GRIFFIN v. CITY OF CHILLICOTHE. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.
Action by Harry Griffin against the City of Chillicothe. Judgment for plaintiff, and defendant appeals. Reversed.
Miles Elliott, of St. Joseph, and Paul D. Kitt and Don Chapman, both of Chillicothe, for appellant.
L. W. Reed, of Breckenridge, and Mytton & Parkinson, of St. Joseph, for respondent.
Action in damages for personal injuries. The verdict of the jury assessed plaintiff's damages at the sum of $25,000. After compulsory remittitur, judgment was entered for plaintiff in the sum of $12,000. Defendant has appealed.
The undisputed facts are that Washington street is a north and south public street in the city of Chillicothe. It is intersected by Ann and Clay streets. Such is the location. Washington street was originally laid out as a street 100 feet wide and was improved and used as a public street throughout the entire width for many years. Several years before the accident in question a strip 30 feet wide in the center of the street had been paved, leaving two parkways between the paved portion and sidewalks about 30 feet wide. On each side of the paved portion, concrete curbing 5 or 6 inches above the top of the pavement and of about the same width had been constructed.
On the east side of Washington street, and between Ann and Clay streets, was a lot or lots 120×120 feet, used as a public hitch yard, where farmers drove their teams and wagons, fed their teams, and left them until needed. This lot was leased by the Chillicothe Chamber of Commerce from the owners for the purpose of operating and maintaining such hitch yard. The premises were used for other purposes, such as a meeting place for private business and social purposes, trading horses, etc. A sort of fair or farmers' congress was held there annually for several years. This fair seems to have been sponsored by the Chamber of Commerce. Teams and wagons were sometimes left on the parkway in front of the lot. The use of the hitch yard was free to such of the public as desired to use it.
At three places the curbing on the east side of a brick pavement had either been left flush with the pavement when it was constructed or had been cut down to such level to permit ingress to and egress from the abutting property. Two of these openings were opposite the hitch yard maintained by the Chamber of Commerce. A third opening was opposite the north side of the lot adjacent to the hitch yard on the south. The latter opening was used by teams and wagons moving along Washington street from the south into said hitch yard, and by those persons leaving the hitch yard and going south on said street. Openings leading into other abutting property are shown on the plat, but they are not involved here. A well-worn dirt roadway extended from the south opening in the curbing over the 30-foot parking into the hitch yard. There is no proof that such dirt roadway had ever been opened, improved, or worked by the city prior to the accident and after the 30-foot pavement was constructed.
On the morning of April 23, 1921, plaintiff drove his team and wagon north upon Washington street, and turned into the south opening through the curbing to go into the hitch yard. A large and deep hole existed at the time in the roadway over the parking just inside the curb and outside of the paved portion of the street. The right front wheel of plaintiff's wagon dropped into such chuck hole. Plaintiff was seated on the wagon seat, and was thrown out upon the ground with such force as to injure him severely. It had rained the night before, and the hole in question was filled with water which concealed its depth. There was evidence tending to show that plaintiff saw the water, but did not suspect that it covered a deep and dangerous hole. Plaintiff testified that it had been two or three months since he had driven into the hitch yard through that opening. There was testimony tending to show that such hole had existed for five or six weeks before the accident occurred.
The foregoing is a sufficient statement of the facts for a consideration of the main contention of defendant that its demurrer to the evidence should have been sustained. Some further statement of the facts may be required for a proper understanding of other questions in the case, if we conclude that plaintiff made a case for the jury.
In substance, the negligence alleged in the amended petition and now relied upon by plaintiff is that the city invited and consented to the use of the roadway over the parking by the public, and negligently permitted a chuck hole to exist in the street and in such roadway portion leading from the paved part of the street into the hitch yard, and that the city negligently failed to guard said hole or to place any warning signs thereabout, and that the city knew of the existence of such dangerous hole for a sufficient length of time before the accident to have repaired same before plaintiff was injured if it had exercised reasonable care.
The answer contained a general denial. It is also alleged that the place of injury was outside of the part of the street prepared by the city for vehicular travel, and that the city was not required to keep such place in a reasonably safe condition for travel thereover. Negligence on the part of plaintiff was also alleged as a contributing cause of his injury.
The amended petition alleged that the hitch yard was maintained by the city. The original theory of plaintiff evidently was that, by so maintaining the hitch yard, the city had invited the general public to come into and use such public facility, and that the duty rested upon the city, under such circumstances, to exercise ordinary care to keep the driveways leading into such hitch yard in a reasonably safe condition for travel. The proof failed to establish that the hitch yard was maintained by the city, or that the city had anything whatever to do with its maintenance. The trial court very properly instructed the jury to that effect, and that it could not find for plaintiff upon the ground that the city was operating or maintaining the hitch yard. Defendant insists that plaintiff is not entitled to recover upon the amended petition unless the city maintained the hitch yard. This question we pass for the present.
The sole question now to be considered is whether the city was required to repair or guard a hole, existing for some time in the driveway over the parking, within the limits of the street as originally laid out, improved and used for a number of years, but outside of the paved portion of the street and its curbing, which designated the place for and confined the limits of ordinary vehicular travel over the street. Plaintiff has abandoned his theory that the city maintained the hitch yard, and now contends that the city is liable because it had left (or permitted to be left) openings in the curbing for ingress to and egress from abutting property, and had knowledge that such openings and driveways were generally used by the public.
This fairly states the question for determination. The alleged liability of the city is not made to rest upon its legal duty to repair or guard dangerous holes or obstructions, outside the traveled portion of the street, but so close thereto as to endanger the public while using such street for vehicular travel in the ordinary way along and parallel with the street. It is clear that if plaintiff had continued driving upon the paved portion of the street and had not attempted to drive his team and wagon across the parkway into the hitch yard he would not have been injured by the presence of the chuck hole.
A city is ordinarily under no duty to maintain driveways connecting abutting private property with the traveled portion of the street, even though such driveway passes over a portion of the dedicated street which is not opened for public travel. The right of a city to improve and open for public travel only a portion of the platted and accepted street and its freedom from liability for injuries to persons using a portion of the street, which the city has not undertaken to improve and to open to public use as a street, although such injuries may be caused by dangerous defects therein, are fully established in this state. Ely v. St. Louis, 181 Mo. 723, 81 S. W. 168; Marshall v. Kansas City, 297 Mo. 304, 249 S. W. 82.
In Kellog v. Inhabitants of Northampton, 4 Gray (70 Mass.) 65, the plaintiff was injured by a defect in a culvert within the located limits of the highway, but not within the traveled part thereof. The culvert formed part of a private passway from the abutting property to the traveled portion, of the highway. The selectmen of the town had participated in constructing and maintaining such culvert. Bigelow, J., said:
"Under the circumstances, we are of opinion that the defendants had a right to ask that the jury should be instructed that a town was not necessarily chargeable with damage arising from every defect existing within the located limits of a highway; that they would not be liable for obstructions or defects in portions of the highway not a part of the traveled path, and not so connected with it that they would affect the safety or convenience of those traveling on the highway and using the traveled path; and that the town would not be legally liable where an injury was sustained by a party using the road for the purpose of passing to or from his private way or path, or his own land, although it was caused by a defect within the limits of the highway as located by law, but outside the Part of the road used for public travel."
In Webster v. City of Vanceburg, 130 Ky. 320, 113 S. W. 140, 19 L. R. A. (N. S.) 752, 132 Am. St. Rep. 392, the facts were quite similar to those in the case at bar....
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