Roy v. Kansas City

• Decision Date: 26 June 1920
• Docket Number: No. 13648.,13648.
• Citation: 224 S.W. 132,204 Mo. App. 332
• Parties: ROY v. KANSAS CITY.
• Court: Missouri Court of Appeals

224 S.W. 132

204 Mo. App. 332

ROY v. KANSAS CITY.

No. 13648.

Kansas City Court of Appeals. Missouri.

June 26, 1920.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

Action by Alice Roy against Kansas City. From a judgment for plaintiff, defendant appeals. Affirmed.

E. M. Harber and A. F. Smith, both of Kansas City, for appellant.

Hogsett & Boyle, of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5,000, and defendant has appealed.

The facts show that at the time of the accident, which occurred on August 17, 1917, about 1 a. m., plaintiff was riding as a passenger in a hired Ford automobile. The automobile was proceeding eastward on the Twenty-Third street viaduct in Kansas City, Kan., when it collided with a pile of lumber left on the driveway of the viaduct by the defendant. The Kansas Avenue viaduct in Kansas City, Kan., connects with the Twenty-Third street traffic way or viaduct, and all of the latter is eventually to be in Kansas City, Mo. The Kansas avenue viaduct runs east and west, the eastern end being at the state line. The purpose of Kansas City, Mo., was to construct a permanent viaduct along Twenty-Third street to join with the Kansas avenue viaduct, which had been completed, to make one entire traffic way, carrying the traffic between the two cities. At the time plaintiff was injured the Kansas City, Mo., part of the permanent structure had not been started, and the traffic from the Kansas avenue viaduct was carried from its eastern end to the higher ground in Kansas City, Mo., some distance to the east, by means of a temporary wooden approach, referred to in the evidence as the Twenty-Third street viaduct. The temporary structure did not join, end to end, with the permanent structure, but entered it from the north side, a few feet west of the eastern end of the permanent structure. Across the eastern end of the permanent structure was a fence running diagonally in a southwesterly and northeasterly direction at an angle of 45 degrees. There was also a fence on each side of the temporary wooden structure. The fence on the south side of the, temporary structure joined with the fence along the eastern end of the permanent structure. The junction of these fences created a corner. The pile of lumber against which the automobile ran was about four feet high, extended out from the south fence of the temporary wooden structure three or four feet and was situated about two feet east of this corner. The night was dark and foggy. There was no light of any kind on the pile of lumber, nor anywhere on the viaduct, that would cast any light upon the lumber. The pile of lumber had been placed by the defendant for the purpose of making repairs on its part of the viaduct, or the temporary wooden structure. The place where the accident occurred was a few feet across the state line in the city of Kansas City, Kan.

At the time of the accident plaintiff with her brothers and another companion was being taken home from a social gathering in Kansas City, Kan., in the automobile which was being driven by one Charles Burley. The automobile at the time was proceeding at the rate of 8 or 10 miles per hour. The automobile had come across the Kansas avenue viaduct and made the turn into the Twenty-Third street viaduct around the corner, when it suddenly and without warning ran into the west end of the pile of lumber, upsetting the car and injuring plaintiff in the manner hereinafter set out.

The first point urged by the defendant is that the court should have given its instruction in the nature of a demurrer to the evidence. There was no notice served upon the city, and defendant insists that this action cannot be brought for the reason that notice as provided under the statute (Laws 1913, p. 545) was not given. The statute provides:

"No action shall be maintained against any city * * * on account of any injuries growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare in said city, until notice shall first have been giving in writing * * * within ninety days of the occurrence."

The statute provides that the notice shall be required when the occurrence happens in the city affected. The occurrence out of which this suit arose did not happen within the limits of defendant city, but outside of the same, and as the statute does not provide for notice under such circumstances, we are not justified in reading into the statute language that is not found therein in order to bring the occurrence out of which this action arose within the terms of the statute. This makes it unnecessary for us to decide whether the pile of lumber in controversy constituted "a defect in the condition" of the viaduct within the meaning of the statute.

It is claimed that if the accident happened outside of the city limits of Kansas City, Mo., there was no duty upon the defendant in reference to the construction and maintenance of the place where the accident occurred as a public thoroughfare. Section 1, art. 1, of defendant's charter gives the city authority to acquire "and hold and use lands or other property, either within or outside of the corporate limits of the city, for * * * viaducts, bridges," etc., and clause 13, § 1, art. 3, of said charter empowers the city "to establish, erect and keep in repair bridges, culverts, sewers, sewer outlets within or outside the limits of the city." The city constructed this viaduct under these provisions of its charter. It is insisted that these provisions of the charter do not impose upon the city a liability for its negligence, if any, in the construction or maintenance of a thoroughfare or viaduct in the state of Kansas. That part of the petition upon which the case was tried and submitted does not proceed upon the theory that it was the duty of the defendant to keep the viaduct and place of the accident in a state of repair, but that defendant was guilty of positive acts of negligence of commission in leaving an unlighted pile of lumber upon a thoroughfare built and maintained by it for use by the public. That the city is liable for such negligence is beyond question. City Council of Augusta v. Mackey, 113 Ga. 64, 69, 38 S. E. 339; City Council of Augusta v. Owens, 111 Ga. 464, 475, 476, 36 S. E. 830; Dooley v. City of Kansas, 82 Mo. 444, 52 Am. Rep. 380; Allison v. City of Richmond, 51 Mo. App. 133, 137.

It will be seen that, by reason of the provisions of the city charter quoted supra, the city in erecting and repairing its viaduct was acting within the authority conferred upon it by law, and that its acts were not ultra vires, even if a portion of such viaduct was without the limits of the city. It is therefore unnecessary for us to discuss the subject of the liability of municipalities for negligence in respect to their ultra vires acts. This subject will be found treated in Jones on Negligence of Municipal Corporations, p. 341 et seq. The case of Stealey v. Kansas City, 179 Mo. 400, 78 S. W. 599, and other cases cited under this head by the defendant, are not in point. In the Stealey Case it was attempted to hold the city liable for its failure to keep in repair a sidewalk outside of the city limits. As before stated, in this case the acts complained of are not those of omission, but commission.

It is insisted that, if defendant's charter authorized the construction and repair of the viaduct, such authority could be exercised only by an ordinance enacted by the proper authorities of the city, and, as there was no proof of the passage of such an ordinance, the acts of defendant's officers and employés in constructing the viaduct and placing the pile of lumber thereon cannot bind the city. Section 1, art. 3, of the charter provides that the power to establish, erect, and keep in repair bridges, etc., within or outside of the limits of the city shall be exercised by ordinance. The record is silent as to whether there was or was not an ordinance. We think that the duty was upon defendant to show the lack of such an ordinance, for the' reason that there is a presumption in favor of the existence of such legislation, if it was necessary, on the part of the city to justify the action of defendant's employés (Kobs v. City of Minneapolis, 22 Minn. 159; Corporation of Bluffton v. Silver, 63 Ind. 262, 267; City of Elgin v. Goff, 38 Ill. App. 362; 6 McQuillin, Municipal Corporations, p. 5478; Frazier v. City of Rockport, 199 Mo. App. 80, 202 S. W. 266), who testified that at the time of the accident they were working for the city in the street repair department, and under the immediate direction of the superintendent of street repairs, whose duty it was, under defendant's charter, to repair viaducts such as this one. Section 5, art. 10, Charter of 1909. These employés further testified that the lumber piled on the viaduct belonged to the city, and was being used in repair work, in which they were engaged, upon the viaduct. The cases of Stewart v. City of Clinton, 79 Mo. 603, and Bennett v. City of Nevada (Sup.) 213 S. W. 785, cited by the defendant, are not in point. In both of these cases it was affirmatively shown that there was no ordinance authorizing the acts of the city officials.

It is contended that the provisions of the charter purporting to confer upon the city the power to construct this viaduct outside of the limits of the city of Kansas, Mo., are unconstitutional and void. The particular provisions of the Constitution of the state of Missouri it is claimed prohibit the enactment by the city of the charter provisions in question are section 16, art. 9, and section 53, art. 4. The former section provides that the charter of cities such as defendant must be "consistent with and subject to the Constitution and laws of this state." The latter provision provides that the General Assembly shall not pass any local or special...