Hedges v. The City of Kansas

• Citation: 18 Mo.App. 62
• Parties: SARAH A. HEDGES AND HUSBAND, Respondents, v. THE CITY OF KANSAS, Appellant.
• Decision Date: 25 May 1885
• Court: Kansas Court of Appeals

18 Mo.App. 62

SARAH A. HEDGES AND HUSBAND, Respondents, v. THE CITY OF KANSAS, Appellant.

Court of Appeals of Missouri, Kansas City.

May 25, 1885

APPEAL from Jackson Circuit Court, HON. F. M. BLACK, J.

Affirmed.

The facts are sufficiently stated in the opinion of the court.

WASH ADAMS, city counselor, and R. H. FIELD, for the appellant.

I. This court has held this city liable for injuries resulting from a failure to keep its streets in repair in a number of instances, beginning with Bowie's Case, 51 Mo 454, but it has been said by high authority that " no precedent of whatever sort, can weigh against right or distinct law, for the latter are certainty, and precedents are used to obtain approximate certainty in cases of doubt. * * * Precedents against law, or the law's reason, must be set aside." Liebers Hermeneutics, p 207.

II. Our specific claim here is that the provisions of the charter of this city have been overlooked; and that the nature and character of the powers there conferred, construed and taken together * * * do not show that the city is liable for a failure to repair defects in its streets. There is no common law liability of a municipal corporation for injuries resulting from a failure to repair its streets; hence such liability does not exist unless it is expressed or implied by statute. Dill. Mun. Corp. (3rd Ed.) sect. 950, et seq. Nichols v. Minneapolis, 30 Minn. 545; Nevastu v. Pearce, 46 Texas 526; Hill v. Boston, 122 Mass. 344; Winebigler v. Los Angeles, 45 California 36. There is no liability unless there is duty to repair imposed upon the corporation itself by the statute; it is not sufficient to make the corporation liable that such duty may be imposed upon its council or other officers. Tranter v. Sacramento, 61 Cal. 71; People ex rel. & c. v. Auditors, 75 N.Y. 316; Dill. Mun. Corp. (3d Ed.) condition 2 of section 1007. And this court refused to hold a county liable for failure to repair its bridges, and which caused personal injuries, because the statute granted the power and imposed the duty to repair roads and bridges upon the county court * * * and not upon the county itself. Sevinford v. Franklin Co., 73 Mo. 279; Reardon v. St. Louis County, 36 Mo. 555. It appears from the statutes hereafter set forth that this power of repairing is conferred exclusively upon the common council.

III. The following are the provisions in the charter upon this subject: 1. " " " The common council shall have power * * * by ordinance * * * to have exclusive power and control over the streets * * * of the city, to * * * grade, pave or otherwise improve and keep in repair the same." 2. " The common council shall have power to cause to be graded, constructed, reconstructed paved, or otherwise improved and repaired all streets * * * within the city, at such times and to such extent, of such dimensions and with such materials, and in such manner and under such regulations as shall be provided by ordinance. " 3. " " " All city improvements of whatever kind or character, made or to be made at the expense of said city, shall be let by contract to the lowest and best bidder and as shall be prescribed by ordinance. Provided that nothing shall be so construed as to prevent the repair by days work of streets, etc., so far as may be necessary for their preservation, under the direction of the city engineer or other proper officer, where such repairs shall have been ordered to be made by a vote of the common council." These charter provisions are the letter of attorney granted by the legislature; the method there pointed out for repairing streets is exclusive of every other. Donovan v. Mayer, 33 N.Y. 291; City of Louisiana v. Miller, 66 Mo. 469.

IV. The city could not have the common council removed for failure to do their duty. They are independent officers, elected for a definite period in obedience to a public statute; hence respondent superior should not apply to this city for their action or non-action. Dill. Mun. Corp. (3rd Ed.) sect. 974; Woods, Master & Servant, sect. 458, et seq. And if the council is considered as the city the power given is still merely discretionary and there is no liability for its non-exercise. Dill. Mun. Corp. (3rd Ed.) sect. 949.

V. Cities of other states have been held not liable on ground that the duty to repair was a public duty in discharge of which the municipality gained no corporate or private advantage. Nevasta v. Pearce, 46 Texas 526; Hill v. Boston, 122 Mass. 344; Detroit v. Blakely, 21 Mich. 84. The same doctrine has been sanctioned in this state in another class of municipal cases. Armstrong v. Brunswick, 79 Mo. 319.

VI. The plaintiff was guilty of contributory negligence. Erie v. Magill, 101 Pa.St. 616; Quincy v. Barker, 81 Ills. 300; Moore v. Abbott, 32 Me. 46; and the negligence of her husband was imputable to her so as to bar recovery. Stillson v. R. R., 67 Mo. 671; Fletcher v. R. R., 64 Mo. 487; Henzer v. R. R., 71 Mo. 636.

VII. The question of negligence was not fairly submitted to the jury by the instructions.

PEAK, YEAGER & BALL, for the respondents.

I. There are three propositions presented by appellant as reasons for reversal. 1. That the city is not liable for injuries resulting from defective streets. 2. That the court should have instructed for appellant on account of the contributory negligence of respondent, Sarah Hedges. 3. That the question of the city's negligence was not properly submitted to the jury.

II. The non-liability of the city for damages resulting from defective streets is the point mainly relied upon. This question has been so frequently before the supreme court of this state; and before all other courts of last resort in this country, and has been so universally decided in opposition to the theory advanced by appellant's counsel, that its discussion would be a useless consumption of time. A summary of all the authorities on the subject may be briefly stated as follows: A city upon which has been conferred the power to open, grade, improve, and exclusively control public streets within its limits, and to which has been given the means of discharging this duty by taxation or local assessment, or both, is liable for any injury resulting from its negligence in suffering its streets to be or remain in a defective or unsafe condition. Dill. Mun. Corp. (3rd Ed.) sects. 999, 1017, 1018; Allhitten v. Huntsville, 60 Ala. 486; Barnes v. Dist. Columbia, 91 U.S. 540; Omaha v. Olmstead, 5 Neb. 546; Jensea v. Atkinson, 16 Kansas 358; Nebraska City v. Campbell, 2 Black. 590; Richmond v. Courtney, 32 Grattan (Va.) 792; Centerville v. Woods, 57 Ind. 192; Chicago v. Robbins, 4 Wall 657; Blake v. St. Louis, 40 Mo. 569; Bassett v. St. Jo., 53 Mo. 290; Smith v. St. Jo., 45 Mo. 449; Market v. St. Louis, 56 Mo. 189; Welsh v. St. Louis, 73 Mo. 71; Russell v. Columbia, 74 Mo. 480; Bonire v. Richmond, 75 Mo. 437; Bowie v. Kansas City, 51 Mo. 454; Hall v. Kansas City, 54 Mo. 598; Grove v. Kansas City, 75 Mo. 672; Halpin v. Kansas City, 76 Mo. 335; Haire v. Kansas City, 76 Mo. 438.

III. The only negligence on part of respondents, if there was any, was that of the husband, and this could not be imputed to the wife. Flori v. St. Louis, 3 Mo. Appeals 231. But even if there was evidence tending to show contributory negligence, the question was submitted to the jury under instructions as favorable to appellant as the law would warrant. Smith v. R. R. Co., 61 Mo. 588; City of Omaha v. Cane, N. W. Reporter, Vol. 22, p. 101.

IV. As to the city's negligence the instructions fairly submitted the question. It appeared from the evidence that the street had been in a dangerous condition for six months, or more; and that the fact had become notorious. Under these circumstances no express notice to the city was necessary. Dill. Mun. Corp. (3rd Ed.) sects. 1024, 1025; Market v. St. Louis, 56 Mo. 189; Requa v. Rochester, 45 N.Y. 135. But even if the instruction was not as explicit in defining negligence as it should have been, the appellant cannot complain, inasmuch as the same definition of negligence was embodied in instruction number three given upon appellant's application. Davis v. Brown, 67 Mo. 313; Crutchfield v. R. R., 64 Mo. 255.

OPINION

PHILIPS P. J.

This is an action to recover damages for personal injuries received by the plaintiff, Sarah S. Hedges, caused by being thrown from a wagon on one of the defendant's streets, which street, it was claimed, the defendant permitted to remain out of repair by suffering a hole two and one-half feet deep to remain in it, so concealed that the wagon ran into it precipitating the plaintiff violently upon the ground. The plaintiff recovered judgment, and the...