Hayes v. City of Kansas City

• Citation: 362 Mo. 368,241 S.W.2d 888
• Decision Date: 09 July 1951
• Docket Number: No. 41924,No. 2,41924,2
• Parties: HAYES v. CITY OF KANSAS CITY
• Court: Missouri Supreme Court

Page 888

241 S.W.2d 888

362 Mo. 368

HAYES v. CITY OF KANSAS CITY.

No. 41924.

Supreme Court of Missouri, Division No. 2.

July 9, 1951.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 10, 1951.

Marcy K. Brown, Jr., David H. Bresler and Frank L. Cohn, all of Kansas City, for appellant.

David M. Proctor, City Counselor, John J. Cosgrove and T. James Conway, Asst. City Counselors, all of Kansas City, for respondent.

TIPTON, Judge.

In the circuit court of Jackson County, Missouri, appellant filed an action for personal injuries she received by being struck by a truck operated by the city while backing in a southerly direction in an alley of respondent. At the close of all the evidence the trial court gave an instructon directing a verdict for the respondent city on the sole ground that the employee operating the truck was engaged in cleaning the public alley, which was a governmental function, for which respondent was not liable for the negligence of its employees.

This alley runs east and west, and is between Vine and Highland Streets and south of 22nd Street. This alley intersects another alley that runs south from 22nd Street. It was near this intersection and in the alley that runs south from 22nd Street that appellant was injured by respondent's truck.

Forrest Moseley was a sanitary enforcement officer and he testified that in the fall of 1948 the unsanitary condition of the alley between Vine and Highland was called to his attention. Upon inspection he found the western section of the alley 'badly littered with wood, ashes, rubbish, garbage and all such refuse that renders it unsanitary to the health of the community.' Moseley reported the condition of this alley to Harvey Bright, district foreman of the street cleaning department, who ordered Brown and Compier, laborers in the street cleaning department, to take a truck and a 'highloader' to the alley and to clean the alley on October 20, 1948. Brown operated the highloader and Compier the truck.

The west section of the east-west alley had several mounds 3 or 4 feet high, making a part of the alley impassable for vehicle traffic. These mounds contained ashes, dirt, rocks and cans impacted into the bed of this unpaved alley. The highloader went into the alley from the Vine Street entrance, but the truck went down to the 22nd Street entrance because it could not travel over the mounds of rubbish, trash and garbage in the east-west alley from Vine Street.

The highloader has a scoop that lowers and as it moves forward this scoop is filled with whatever it comes in contact. When full it is raised and its contents then dumped into the bed of the truck. That morning 4 truckloads of debris were taken to the city dump. The truck had a capacity of 5 cubic yards.

About noon the highloader broke down and Compier went to get a mechanic, brought him back, drove around the block and backed down the 22nd Street alley for a load he though he would get, as he figured the mechanic would have the highloader working. It was while backing the truck that it struck appellant and injured her. The mechanic was unable to repair the highloader and the work stopped, but later in the day Compier went back to fill some tire track holes with a shovel in order to make the surface of the alley smooth, and then automobiles were able to travel in this part of the alley. Respondent did not use men to sweep or clean the alley.

The grade of the alley was established in the year 1890 and a clerk from the city engineer's office testified that the records in that office did not show that there was an authorization by the city council for grading this alley after that year.

Other essential facts will be stated in the course of this opinion.

Appellant's brief says: 'It is unquestionably the law in this state that street cleaning is a governmental function for which the city is not liable for negligence in its performance. It is also equally true that the city is liable for negligence in construction of its streets and removing obstructions therefrom, maintaining its streets, or for its failure to keep streets free from nuisance, defects or obstructions caused by its negligence or that of third persons, of which it has notice.'

We think this is a correct statement of the law. A city 'has the duty to construct and maintain them [streets] in such condition that they will be reasonably safe for public travel, and, therefore, is liable in damages for injuries caused by negligent construction or by failure to keep them 'free from nuisances, defects, and obstructions caused by itself or by third parties if it * * * had actual or constructive notice thereof in time to abate the nuisance, remove the obstruction or repair the defect.' There can be no question about these well established rules or that the duties imposed by them are non-delegable duties.' Carruthers v. City of St. Louis, 341 Mo. 1073, 111 S.W.2d 32, loc. cit. 35.

On the other hand, the rule in this state is firmly established that the keeping of streets clean and free from filth and noxious refuse is a governmental function and a city is free from liability in connection therewith. Cassidy v. City of St. Joseph, 247 Mo. 197, 152 S.W. 306; Behrmann v. City of St. Louis, 273 Mo. 578, 201 S.W. 547. The plaintiff in the Cassidy case sued the city for damages caused by the negligence of the driver of a team used by the dity in cleaning its streets. In holding the city not liable, we said, 247 Mo. loc. cit. 207, 152 S.W. loc. cit. 309:

'It [the city] also assumes the duty, where the act of its creation so provides, to furnish police protection to the inhabitants, to take measures to protect their health, and to insure general cleanliness and decency. * * * The patrol wagon and its driver, the city ambulance with its driver, the street sweepers with the vehicles, and employes that gather the dirt are all agencies of the government with respect to these matters as well as are the mayor and council who provide the rules that set them in motion. The rule respondeat superior does not apply as between them and the municipality nor is the city under obligation to account to any private individual for the manner in which these discretionary duties are performed. * * *

'These principles are almost universally recognized by the courts, * * *.'

In the Cassidy case the dirt in the street was swept in small piles and then the city employees shoveled it into wagons drawn by horses. One team of horses ran away, striking an employee of the city, who died from these injuries.

In the case at bar, the injuries to appellant were caused by a truck's being backed up an alley to get a load of dirt to be put into the body of the truck. There is evidence in this case that this is the first time the city had used the highloader. We can see no difference between the method of getting the dirt off the street of the city of St. Joseph when it had been swept in piles by hand and getting the dirt out of the alley by the use of a highloader and loading it into a truck. We have ruled that a modern method...