Hiltner v. Kansas City

• Decision Date: 09 July 1956
• Docket Number: No. 45089,No. 2,45089,2
• Citation: 293 S.W.2d 422
• Parties: Mary E. HILTNER, Appellant, v. KANSAS CITY, Missouri, and The Kansas City Public Service Company, Respondents
• Court: Missouri Supreme Court

Page 422

293 S.W.2d 422

Mary E. HILTNER, Appellant, v. KANSAS CITY, Missouri, and The Kansas City Public Service Company, Respondents.

No. 45089.

Supreme Court of Missouri, Division No. 2.

July 9, 1956.

Rehearing Denied Sept. 10, 1956.

Irving Achtenberg, Kansas City, for appellant.

Benj. M. Powers, City Counselor, J. L. Parks, Asst. City Counselor, Kansas City, for respondent Kansas City.

Charles L. Carr, Kansas City, for respondent Kansas City Public Service Co.

STOCKARD, Commissioner.

Upon motion by each defendant, plaintiff's second amended petition for damages in the amount of $35,000 was dismissed by the trial court for failure to state a claim upon which relief could be granted. Plaintiff has appealed.

The pertinent parts of plaintiff's petition, as stated by plaintiff in her brief and adopted as a correct statement by both defendants, are as follows:

'(a) Plaintiff, while standing within a streetcar safety zone, at or near the southeast corner of 41st Street and Troost Avenue, for the purpose of boarding a streetcar operated by the defendant Public Service Company, was struck by an automobile which was proceeding and being driven northward in said street. (b) That said safety zone aforesaid was provided and maintained by defendants for the use and protection of persons using public service conveyances; (c) That said safety zone had been adopted by and was being used by said defendant Public Service Company as a place at which to board its streetcars, thus inviting passengers to use the same; (d) That at the South end of said safety zone and in said zone and public street, there was a vertical metal post and reflector sign erected and maintained by defendants to warn persons driving along said street of the existence of said safety zone and for the further purpose of barricading and protecting persons using said safety zone for boarding and leaving public service conveyances; (e) That prior to said accident aforesaid, said signpost had been struck by a vehicle so that said sign and post were no longer visible to drivers of vehicles and no longer served as a protection and barricade for said safety zone; (f) That said safety zone was not otherwise sufficiently marked, lighted and barricaded; that said safety zone was an inherently dangerous condition in, and obstruction of, said street and a public nuisance; (g) That the erection and maintenance of said sign post was not authorized by an ordinance of the City of Kansas City, Missouri; (h) That defendants, and each of them, and notice and actual knowledge of the afore-described condition of said safety zone; (i) That due to the negligence of defendants as hereinafter set forth, said automobile aforesaid was caused to pass through said safety zone, striking and injuring plaintiff.'

In determining if a petition states a claim upon which relief may be granted, the averments of the petition are to be given a liberal construction, and they should be accorded their reasonable and fair intendment. Fair implication should be indulged from the facts stated. So considered, a petition should be held sufficient if its averments invoke substantive principles of law which entitle the plaintiff to relief. A petition is not to be held insufficient merely because of a lack of definiteness or certainty in allegation or because of informality in the statement of an essential fact. Zuber v. Clarkson Construction Company, 363 Mo. 352, 355, 251 S.W.2d 52, 54.

The city contends that the maintenance of the vertical post and reflector sign at the south end of the safety zone was an exercise of a governmental function for which a failure to maintain properly is not actionable negligence. Plaintiff concedes that the 'regulation of traffic is a governmental function and accordingly so is the maintenance of a traffic signal,' but she contends that she did not plead 'negligent maintenance of a traffic signal, but negligent maintenance of a safety zone.' The issue thus presented is whether the maintenance of the safety zone was a corporate or governmental function.

Several writers in the field of municipal law have criticised the principle that for the purpose of determining tort liability of a municipality there should be a distinction made between governmental and corporate functions. See the articles in 3 Mo.L.Rev. 275; 16 Oregon L.Rev. 250; 3 Current Legal Thought 113 and 823. However, this distinction is made in Missouri, and it is well established that a municipality is not liable in tort for the negligent performance of its governmental as distinguished from its corporate functions. Cassidy v. City of St. Joseph, 247 Mo. 1978 152 S.W. 306; Pearson v. Kansas City, 331 Mo. 885, 55 S.W.2d 485; Auslander v. City of St. Louis, 332 Mo. 145, 56 S.W.2d 778; Carruthers v. City of St. Louis, 341 Mo. 1073, 111 S.W.2d 32; Blackburn v. City of St. Louis, 343 Mo. 301, 121 S.W.2d 727; See also 18 McQuillen, Municipal Corporations, 3d Ed., Sec. 53.23. And it has repeatedly been held, and plaintiff concedes, that the regulation of traffic is a governmental function. Prewitt v. City of St. Joseph, 334 Mo. 1228, 70 S.W.2d 916; Auslander v. City of St. Louis, supra; Carruthers v. City of St. Louis, supra; Blackburn v. City of St. Louis, supra.

In support of her position that the alleged acts of the city in this case constitute a negligent performance of its duties to provide and maintain its streets in a reasonably safe condition, for which acts it is liable in tort, plaintiff cites Mengel v. City of St. Louis, 340 Mo. 994, 111 S.W.2d 5; Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001; Metz v. Kansas City, Missouri, 229 Mo.App. 402, 81 S.W.2d 462; and Adams v. Kansas City, Mo.App., 266 S.W.2d 771. These cases all properly hold that a city is liable in tort for its failure to maintain its streets in a reasonably safe condition. Each case involves the situation where a traveler, either in a car or as a pedestrian, was injured by reason of the failure of the city to mark adequately an obstruction in the street or because it permitted the continued existence of a dangerous defect in the street. However, in each case the obstruction was not an instrumentality used solely for the direction of traffic, or the defect did not pertain to the use of the instrumentality in directing traffic. Therein lies the distinction between those cases and this one.

The purpose and effect of the establishment of a safety zone is to set aside a portion of the street for a particular use, that is, for the exclusive use of pedestrians. It is a regulation of traffic, both vehicular and pedestrian. Every safety zone is an obstruction in the street to a certain degree. That is its purpose. But as long as the obstruction has as its purpose, and is a reasonable device for the regulation of traffic, the city is not liable for its creation and maintenance, even though in doing so it may be negligent. This principle of liability of a municipality is recognized in 18 McQuillen, Municipal Corporations, 3d Ed., Sec. 53.43, wherein it is stated: 'As a general rule a city [acts] in a governmental capacity in authorizing and maintaining safety zones in streets and may not be subjected to liability with respect thereto. Thus a city is not liable to one injured in a safety zone, while waiting to board a bus by being struck by an automobile negligently driven by another, by reason of failure of the city to have erected rails and protective devices around the safety zone.' See also Shaw v. City of New York, 165 Misc. 765, 1 N.Y.S.2d 311; Taylor v. City of Shreveport, La.App., 29 So.2d 792.

In Blackburn v. City of St. Louis, supra, the plaintiff was standing on the sidewalk and was injured by an automobile when it careened onto the sidewalk after striking metal markers outlining a safety zone in the street. Plaintiff contended that the city was negligent in that it had not maintained properly the safety zone markers and had permitted them to become in disrepair, discolored, unlighted, unpainted, partially sunken into the street and without reflectors. It was contended that these markers formed obstructions to travel and thereby caused the street and sidewalk to be in a dangerous, unsafe and defective condition. The city contended that it was not liable because it had installed the safety zone as a part of a general plan for public safety and traffic regulation, and was thus acting in a governmental capacity, and that the maintenance of the safety zone was a continuance of such governmental function. After careful consideration it was held by this court that the maintenance of the markers of the safety zone was an exercise of governmental rather than corporate functions, and that the city was not liable in tort for the negligent maintenance. We can see no distinction in principle between the Blackburn case and the present case. In each the plaintiff was in an authorized place, and in each the plaintiff was injured by a third person by reason of the alleged negligence of the city in failing to maintain properly a safety zone.

A safety zone is not in and of itself inherently dangerous. There are no facts alleged from which it could be inferred that the safety zone was not a reasonable device for the regulation of traffic. The only negligence of which the city is charged is that of negligent maintenance of the safety zone in its use as a device for the regulation of traffic, and for that negligence the city is not liable in tort. The petition does not state a cause of action against the city.

We turn now to the question of whether the petition states a cause of action against Kansas City Public Service Company. The acts alleged to have been performed or omitted were charged jointly against both defendants, but for the purposes of this discussion we shall consider the allegations as applying severally to the street car company.

Plaintiff alleges in general terms that the sefety zone 'was provided and maintained by defendants...