Hunter v. Weston

• Decision Date: 01 July 1892
• Parties: HUNTER et ux. v. WESTON et al.
• Court: Missouri Supreme Court

19 S.W. 1098

111 Mo. 176

HUNTER et ux. v. WESTON et al.

Supreme Court of Missouri, Division No. 2.

July 1, 1892.

PUBLIC ALLEYS — CITY ORDINANCES.

An alley merely designated on paper, having no existence de facto, and never opened for public use, is not within the ordinances of Kansas City, § 1036, providing that no person shall dig in, near, or adjoining an alley or other public place any opening without causing it to be covered to prevent persons falling therein; or section 1046, forbidding the leaving of a wagon or other vehicle in an alley without some beast of burden being harnessed thereto.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

Action by James M. Hunter and wife against William Weston and Kansas City. Judgment for defendants. Plaintiffs appeal. Affirmed.

H. M. Merriwether, for appellants. F. F. Rozelle and Frank P. Walsh, for respondent Kansas City. Karnes, Holmes & Krauthoff, for respondent Weston.

THOMAS, J.

This is an action for personal injuries received by Mrs. Hunter on the 16th day of March, 1889. At the close of plaintiffs' evidence the court directed a nonsuit, and plaintiffs appeal. In 1886 defendant Weston filed in the recorder's office of Jackson county a plat of Weston's addition to the city of Kansas. The land platted was bounded on the west by Clairmount street, on the south by Pacific street, on the east by land not laid off into town lots, and on the north by what is known as "Hurk's Resurvey;" the latter extending north to Fifth street, that being the first street it reached. On the plat of Weston's addition, an alley 14 feet wide is marked, extending from Pacific street to the north boundary of that addition; and on the east line of Hurk's resurvey an alley six feet wide is marked on the plat thereof, extending to Fifth street. This alley is equidistant from Clairmount street and Highland avenue, the land between the alley and the avenue being unplatted, and the avenue being about 50 feet higher than Clairmount street. The lots in Weston's addition front 25 feet each on Clairmount street, running back to the alley over 100 feet. Weston, still being the owner of these lots, opened a quarry on them, beginning on Clairmount street, and at the time Mrs. Hunter was injured the excavation extended back some distance, its eastern wall being at the north end of Weston's addition some 70 or 80 feet from the alley, and extending diagonally across the lots in a southeast direction, till it intersected the alley about 150 feet from the north line of the addition; the quarry wall being 25 or 30 feet high. A wire fence was constructed in this alley, being 6 feet 3 inches from the west line of the alley at the north end of the addition, and running south to within 2 feet of that line at the point of intersection with the wall of the quarry. On "Hurk's Resurvey" immediately adjoining to Weston's addition was situated a dwelling house, a part of which plaintiffs occupied, the other part being occupied by a man by the name of Cox. This house could not be approached from the west and south on account of the quarry excavation, nor from the north on account of a bluff on the south side of Fifth street, where the alley terminated; but it could be reached from the rear, by going along Highland avenue, and thence across the unplatted land, entering the alley at the north end of the wire fence, where there was an opening in a hedge fence. Cox owned a two-horse wagon, which he left, when not in use, sometimes on the east side of the hedge and wire fences, and sometimes in the alley. He did not use the wagon on the 16th day of March, 1889, and had left it standing in the alley some eight feet south from the north end of the wire fence, with the tongue in the fence. On that day plaintiffs' little girl, Clara, about five years old, another little girl named Ettie Prill, about four years old, and a little boy named Leo Prill, about six years old, were at this wagon playing. The two girls were in the wagon, and the boy was playing with the tongue, swaying it to and fro. Mrs. Hunter, who was at work about her house, saw the children, and started towards them to take her child...