Jackson v. City of Sedalia

• Decision Date: 22 May 1916
• Docket Number: No. 11997.,11997.
• Citation: 193 Mo. A. 597,187 S.W. 127
• Parties: JACKSON v. CITY OF SEDALIA.
• Court: Missouri Court of Appeals

187 S.W. 127

193 Mo. A. 597

JACKSON v. CITY OF SEDALIA.

No. 11997.

Kansas City Court of Appeals. Missouri.

May 22, 1916.

Rehearing Denied June 12, 1916.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

"To be officially published."

Action by Laura Jackson against the City of Sedalia. Judgment for plaintiff, and defendant appeals. Affirmed.

Hall, Robertson & O'Bannon, of Sedalia, for appellant. W. D. Steele and A. L. Shortridge, both of Sedalia, for respondent.

TRIMBLE, J.

This is an action for damages arising from a fall by plaintiff while walking on a public street in the city of Sedalia. She recovered judgment for $1,000, and defendant has appealed.

The facts are as follows: Engineer street, in said city, runs north and south and is intersected at right angles by Eighteenth street running east and west. Nineteenth street is parallel to and the next street south of Eighteenth. Plaintiff lived on Nineteenth street one house east of Engineer street. For many years Engineer has been one of the traveled streets of the city. About four years prior to the plaintiff's fall the city had graded this street from curb line to curb line. The street was level and smooth from property line to property line, and the grading consisted merely of taking out the dirt to a depth of eight or ten inches at the curb line on each side and making a well-defined roadway between the two curb lines and leaving a space on each side of the roadway about eight feet wide. This space was between the property line and what is ordinarily the curb, and in other streets is the space that is occupied by the sidewalk and parking adjacent thereto. Along the south side of Eighteenth street from the west side of Engineer is a concrete sidewalk which extends west to the principal part of the city and the nearest car line. From the east end of this sidewalk at the southwest corner of Eighteenth and Engineer streets, a crossing extends west across Engineer street to the southeast corner of Eighteenth and Engineer.

Some three years prior to plaintiff's fall, Mr. Hocker, who then was and ever since has been an alderman of the city, drove a number of stakes in a row, commencing at a point about 20 feet south of the crossing at the southeast corner of Eighteenth and Engineer streets and running south for several feet. There was a woven wire fence on the property line on the east side of Engineer street, and this row of stakes was 7 feet west of the fence. They were perhaps a few inches, perhaps a foot, east of the edge of the graded part, and therefore between the property line and the curb line and within the space left on the east side of the street for the sidewalk. From the southeast corner of Eighteenth and Engineer streets there is no sidewalk running east along Eighteenth street, nor has any sidewalk been constructed along the east side of Engineer street. But for many years the public, and especially the people living south and east of the last above-mentioned corner, have traveled upon this 8-foot space on the east side of Engineer street as a sidewalk in going from Eighteenth to Nineteenth, and vice versa. For several years the city has maintained a street sign with the number on it on the east side of Engineer street at Eighteenth. This 8-foot space, thus used as a sidewalk, was level and smooth and required nothing to be done to it to put it in condition for pedestrians to walk upon it as a sidewalk, though, as has been stated, no walk was ever built there; the people merely using the smooth ground as a sidewalk.

On the night of November 15, 1914, which was very dark, plaintiff was returning home from a neighbor's. She came east along the south side of Eighteenth street and, reaching Engineer street, continued east across that street on the crossing till she came to the southeast corner of Eighteenth and Engineer. Here she turned south on the space used as a sidewalk and attempted to proceed in the middle of the walk to Nineteenth street. In doing so, she unwittingly veered slightly from a due south course and stumbled over one of the stakes above mentioned and fell upon some of the others, they striking her in the groin and abdomen and injuring her severely. These stakes were about six inches high and perhaps two inches square.

It is the contention of the defendant that its demurrer to the evidence should have been sustained. This contention proceeds upon the idea that inasmuch as there was no constructed sidewalk, made of wood, stone, brick, or other materials built on this eight-foot space, the city could not be deemed to have undertaken the duty of keeping it in reasonably safe repair, and therefore could not be held liable. In support of this contention, defendant cites Ely v. St. Louis, 181 Mo. 723, 81 S. W. 168; Ruppenthal v. St. Louis, 190 Mo. 213, 88 S. W. 612; Curran v. St. Joseph, 143 Mo. App. 618, 128 S. W. 203.

The doctrine of these cases is well established, and no one would attempt to controvert or question them. It is quite true that a city, in merely accepting a street, or by declaring that it is such, or in deciding to what extent the street shall be given to the public for use, acts in its governmental or legislative capacity, and cannot be held liable for any neglect of duty until after the city has acted in its ministerial capacity by giving the street to the public for use and inviting the public to travel the same; and since it is a governmental matter for the city to say to what extent it will offer a street to the public for use, if an individual attempts to use a portion which the city has neither actually nor impliedly invited him to use, and he is injured thereon, he cannot look to the city for damages.

But it must always be remembered that it is not the improvement of the street that fixes liability for neglect of duty. It is the invitation on the part of the city to use that portion of the street on which the traveler is injured that renders the city liable for neglecting to keep such portion in a reasonably safe condition for travel. Of course, the fact that the city has improved, or has sought to repair, the portion of the street where the injury occurred, is evidence that such portion has been given and opened to the public for use; but, if that can be shown by other facts, it will be sufficient.

In this case the street was level and smooth, fit for travel from property line to property line without anything being done to it. When it is shown that such a street has been opened to the public for use, the invitation is that every part thereof suitable for travel may be used. When the roadway between the curb lines was graded and properly shaped up leaving an eight-foot space on the east side of the street for a sidewalk, and in good condition for use as such without anything further to be done to it in order to make it suitable for travel, there is nothing to indicate to the traveling public that the invitation to use the street is limited to the roadway portion. Nor, indeed, was the invitation limited thereto in this case, for a crossing led from the southeast corner of Eighteenth and Engineer streets west across the latter to the north end of the sidewalk space in question. And as no actually constructed sidewalk led on from the termination of this crossing, it was in itself an invitation to the public to use the strip running south along the east side of Engineer street as a sidewalk. The city engineer admitted on cross-examination that there was a walk there, and that the strip was "left there for people to walk on," but said there was no granitoid or other paved walk there. For...