Hanke v. City of St. Louis

• Decision Date: 23 May 1925
• Docket Number: No. 24616.,24616.
• Citation: 272 S.W. 933
• Parties: HANKE v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

272 S.W. 933

HANKE v. CITY OF ST. LOUIS.

No. 24616.

Supreme Court of Missouri, Division No. 1.

May 23, 1925.

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

Action by Ida Hanke against the City of St. Louis. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

M. L. Lichtenstadt and Charles E. Morrow, both of St. Louis, for appellant.

Oliver Senti, Arthur H. Bader, Michael J. Hart, and Charles J. Dolan, all of St. Louis, for respondent.

LINDSAY, C.

A verdict adverse to the plaintiff was returned in her suit for damages, for personal injuries sustained by her through a fall, while walking upon what was alleged to be a public sidewalk and thoroughfare, in the city of St. Louis. The petition described this sidewalk and thoroughfare as being continuations of Cockrill street, and as extending northwardly from that street, to Easton avenue, which is a street extending east and west. One block south of Easton avenue is Wells avenue, which also extends east and west. The sidewalk in question is immediately west of and parallel with the right of way and tracks, called the Suburban tracks, of the street railway company. This sidewalk extends from the sidewalk on Wells avenue, northward to the sidewalk on Easton avenue. The place where the plaintiff fell, described in the petition, and the locus of the defect alleged, is immediately at the intersection of the east line of this sidewalk, with the south line of the sidewalk along the south side of Easton avenue. Within the inner or southeast angle of the intersection of these two lines, and contiguous to the two sidewalks, there was set a triangular piece of granitoid or concrete construction, lower than the two contiguous intersecting sidewalks. The plaintiff walked northward on this sidewalk, intending to go thence eastward, on the Easton avenue sidewalk. In turning east, at the intersection, she came into contact with the triangular piece of concrete which has been mentioned, fell, and received injuries.

The sidewalk along which she went was 5 or '6 feet wide, and was of granitoid or concrete construction. The triangular piece, inset at the intersection was of the like construction and appearance, but was from 2 to 3 inches lower than the two contiguous walks, and it was described by one or more witnesses as a "slope." This sidewalk, extending thus north and south from Wells avenue to Easton avenue, was referred to as Cockrill avenue, by many of the witnesses. The defendant admitted that Easton avenue was a public street. The primary question was whether the place where the plaintiff walked was a part of a public way, and the defect therein, the depressed triangular piece, a part of the public way. Defendant's contention was that the sidewalk along which plaintiff proceeded northward toward Easton avenue, was a private way—a walk constructed upon private property, by owners of the buildings adjacent on the west—and that the triangular piece was on private property and privately constructed, and that the city had never adopted either as a part of its public ways. It may be further explained that what has been referred to as Cockrill avenue, between Wells avenue and Easton avenue, was not a street or way for the passage of vehicles, and was not a street established by any formal action of the city. An iron railing extended from the north line of Wells avenue along the east side of the sidewalk in question to a point about 60 feet south of the Easton avenue sidewalk. This railing separated the sidewalk from the right of way of the street railway tracks, and there was no space there for driving vehicles, but it was shown that before the sidewalk was built vehicles passed through. There was, however, no obstruction of any kind to unrestricted travel upon and along this sidewalk to or from the sidewalks on Easton avenue and Wells avenue. It is not wholly made clear, but we infer from what appears in the record, that Cockrill avenue proper was a street extending northward as far perhaps as Ridge avenue, which was the east and west street next south of Wells avenue.

I. The errors assigned by plaintiff are directed to certain instructions given for defendant, and certain evidence admitted over the objection of plaintiff. The first contention made here by defendant is that there was no dedication or condemnation, and that the use of the walk was merely permissive: that the plaintiff was not a traveler on a public sidewalk when she was injured; and there is also the contention that she was guilty of such negligence as barred a recovery. The record shows that the defendant offered peremptory instruction at the close of plaintiff's case, which was refused. Defendant introduced its evidence and rested, and again offered a peremptory instruction, as at the close of the entire case. This was overruled by the court. The plaintiff was then recalled, as in rebuttal, and was asked by her counsel to state whether Dr. Demko, representing the city, had examined her, in the presence of Dr. Sellers, plaintiff's physician. She answered that he had. Counsel for defendant objected, and moved that this be stricken out. The court remarked: "That is not in rebuttal of anything." Thereupon plaintiff rested and defendant rested. The instruction in the nature of a demurrer to the evidence was not again offered; but the question whether the plaintiff made a case for the jury is in issue here, because the verdict was for the defendant. The plaintiff cannot be entitled to a reversal of the judgment and remanding of the cause, if she failed to make a case submissible to the jury. With that in view, the evidence is to be further considered.

II. The sidewalk in question had been in existence for 20 years or more at the time of the trial. As has been stated, the Suburban tracks of the street railway lay on the east side of it. On the west side of it there were 5 brick store buildings, fronting upon this sidewalk. The northernmost or corner building faced this sidewalk toward the east, and also the Easton avenue sidewalk on the north, and at the time of plaintiff's injury was occupied as a soft drink parlor.

George W. Rinkel, owner of 4 of the store properties, and of the ground on which the corner building stood, testified that he had the sidewalk constructed from the corner at Easton avenue southward to the alley, and that, from the alley southward to Wells avenue, the sidewalk had been constructed by other owners according to an understanding between them. There were some dwellings south of the alley fronting on this sidewalk. This construction was done without securing a permit from the city, and without making any conveyance to the city by the owners of the ground. The witness testified that he did not know who constructed the triangular piece heretofore mentioned, but, that it had been there as it was for 20 years. He said that the land north of the alley on which the sidewalk was built was his property, at that time; that it was built for the benefit of the stores and their patrons and for the public. To the question whether the sidewalk was used by the public generally he said: "That is what it is there for; it is open to the public. That is what they put it down for." He said he never "dedicated anything"; that he thought he knew what "dedicated" meant; that he never deeded the property; but that it was and had been open to the public. The 5 store buildings mentioned were numbered consecutively 1487, 1489, 1491, 1493, 1495. The corner one, No. 1495 on this sidewalk, was No. 6116 Easton avenue. The witness said he did not have the house numbering department of the city number his stores, that the city had done no repairing of the sidewalk, but that any repairing which had been done upon it was done by the owners of the adjacent property or their tenants. On the north side of Wells avenue, at the northeast corner of its intersection with the Suburban tracks, the city had maintained a lamp for many years. One side of this lamp was marked "Wells avenue" and the other, "Cockrill avenue." On the south side of Wells avenue, there was on a telegraph pole the sign "Cockrill street." The witness Rinkel testified that the city furnished water at the stores numbered 1487 to 1491. These buildings as listed on the books of the water department were 1487 to 1491 "Suburban tracks," but it was shown that a building did not have to be on a public street to get water from the city.

A. E. Eyster, who had lived at 1409 Cockrill street for 17 or 18 years, testified that he had known the sidewalk in question during that time, and that it had been used by the public generally during all that time; that the sign "Cockrill street" had been on the lamp post 7 or 8 years; that the line of sidewalk from Wells avenue to Easton avenue was straight. This witness said that there was a sewer opening on Wells avenue, but he did not know whether there was one between Easton and Wells avenue along the Suburban tracks; that, prior to the time when the iron railing was placed between the sidewalk and the Suburban tracks, wagons had gone through between Easton and Wells avenues. It was shown that the railing had been put along the east side of the sidewalk, fencing it from the right of way, by the property owners, with the consent of the street railway company; the company furnishing the railing. This railing stopped at a point 60 feet south of Easton avenue. This witness testified that he had always known this way as Cockrill street, but there was evidence that it was also spoken of as "Suburban tracks."

The testimony of the mail carriers delivering mail in that locality was that the greater portion of it destined to the stores and other buildings mentioned was addressed "Cockrill street," but some of it "Suburban tracks." It was shown that police officers used this sidewalk frequently in passing between Easton avenue and Wells avenue, and that in walking the beat at night tried the doors...