Ruppenthal v. City of St. Louis

• Citation: 190 Mo. 213,88 S.W. 612
• Parties: RUPPENTHAL v. CITY OF ST. LOUIS.
• Decision Date: 15 June 1905
• Court: United States State Supreme Court of Missouri

88 S.W. 612

190 Mo. 213

RUPPENTHAL v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

June 15, 1905.

MUNICIPAL CORPORATIONS — STREETS—IMPROVEMENT—INJURIES.

Where a street 80 feet wide had only been improved and opened to public use as to the

central 50 feet thereof, and the city had never invited the public to use the 15-foot strips on each side reserved for sidewalks, the city was not liable for injuries to a pedestrian caused by a defect in a sidewalk along the street, which was constructed without the consent or authority of the city, the condition of which was such as to indicate to a person exercising ordinary care that the sidewalk portion of the street had not been improved.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Adolphus F. Ruppenthal against the city of St. Louis. From a judgment for plaintiff, defendant appeals. Reversed.

Chas. W. Bates, Wm. F. Woerner, and Benj. H. Charles, for appellant. A. R. Taylor, for respondent.

MARSHALL, J.

This is an action for $5,000 damages for personal injuries, alleged to have been received by the plaintiff on the 29th of July, 1900, on the south side of Arsenal street, about 160 feet west of Portis avenue, caused by the plaintiff stepping into an alleged hole or trench running across the sidewalk, which hole is alleged to be 18 inches deep, 18 inches wide, and 3 feet long, in consequence of which the plaintiff's left foot and ankle were injured and sprained. The answer is a general denial, coupled with a plea of contributory negligence. There was a verdict for the plaintiff for $2,500, and the defendant appealed.

The case made is this: Arsenal street runs east and west, is 80 feet in width, and is immediately south of Tower Grove Park. It was a macadamized country road at the time of the separation of the city and county of St. Louis. The macadamized portion aforesaid occupies 50 feet of the 80-feet width of the street. Outside of the macadamized portion, the street has never been graded; the city has never exercised jurisdiction over it, or invited travel thereon. Weeds to the height of two or three feet grow between the macadamized portion and the outside limits of the street. The macadamized roadway is much higher than the unimproved portion of the street. Along the sides of the street that have not been improved there is a natural water drain. Beginning at Portis avenue, and extending 160 feet westwardly there is a granitoid sidewalk 6 feet wide, which was built, supposedly, by the abutting property owners. The city did not construct it, or order it constructed, and there is no evidence in the record that it was constructed by the authority or permission of the city. On the corner of Portis avenue and Arsenal street there is a vacant lot 109 feet 7¾ inches. Immediately west thereof there is a two-story brick house, located on a 25-foot lot. West of said house there is a 25-foot lot, which is used for truck gardening. Between that point and Kings highway, a distance of 1,200 feet, there are four houses at considerable intervals. All the remaining portions of the land abutting Arsenal street on the south is used for, agricultural purposes. Between the end of the granitoid sidewalk and Kings highway, the southern portion of Arsenal street is in a state of nature, and has never been graded or improved in any manner. The evidence shows that pedestrians have used it for a passway, and by such use there has been created a worn pathway about one foot wide, which is described as not being in as good condition as the ordinary country road. On the north side of Arsenal street, opposite the terminus of Portis avenue, there is an electric arc light. There is also another electric light at the first or second house beyond the western end of the granitoid sidewalk. About one foot or one foot and a half west of the western terminus of the granitoid sidewalk some one quite a while before the date of the accident put a pipe extending northwardly and southwardly from the natural drain aforesaid, towards the south, so as to drain the lot lying to the south of the street. There is absolutely no evidence as to who put the pipe in said place, nor is there any evidence connecting the city therewith. The pipe is not as long as the width of the granitoid sidewalk. The pipe is covered over with earth, but the width of the dirt sidewalk, commencing at the western end of the granitoid sidewalk, is only 3 feet, whereas the granitoid sidewalk is 6 feet, thus leaving on each side of the dirt pathway, at the end of the granitoid sidewalk, a space of 18 inches where there is no sidewalk or pathway. The water had washed holes at each end of the pipe in the said 18 inches of space aforesaid. The survey of the place showed the hole on the north side to be 10 inches deep and 12 inches in width and in length. The plaintiff lived on Magnolia avenue, west of Tower Grove Park—Magnolia avenue being the north boundary of Tower Grove Park—and had lived there seven or eight years. His daughter lived at 4146 Wyoming street, which was south and east of the place of the accident. The plaintiff had been in the habit of visiting her about once a week, and in doing so he said he usually went through the park, and had never used this portion of the street before, and did not know of the hole at the end of the granitoid sidewalk. On the 29th of July, 1900, the plaintiff and his wife had visited their daughter, and started home about 10 o'clock p. m. They traveled north on Portis avenue to Arsenal street, and then turned west on the south side of Arsenal street, walking along the granitoid sidewalk. When they reached the end of the granitoid walk, the plaintiff stepped off the end thereof into the hole aforesaid, at the northern end of the drain across the dirt walk above described, and was injured.

The plaintiff's evidence tends to show that he suffered a fracture of the fibula, with a rupture of the tendons of the ankle; that he was not able to go out of the house for two months, and that he used crutches for about nine months; that he was totally disabled from work for about three months; that he was a whisky broker, a manufacturer of extracts and flavors for liquors, and also of Tamaric Medicinal Bitters; and that his earnings amounted to $1,500 to $2,000 a year.

The defendant's evidence tends to prove that in August, 1900—the exact date is not stated, but it was within 30 days after the date of the accident—the plaintiff was seen walking around; that at times he would have his crutches, and then he would forget them; that sometimes he would have one crutch, under his right arm, and at other times the crutch would be under the left arm, and again he would not have any; that he was seen walking on the Morgan-Ford Road, about a mile from his home, within a month after the date of the accident. The plaintiff himself said that about three weeks after the accident he went to the place of the accident, using his crutches in doing so, and measured the width of the sidewalk and the depth of the hole. The defendant's testimony showed that the city kept up the macadamized portion of the street, occupying 50 feet in the center thereof, but had never graded or undertaken to improve in any way the remaining portion of the street; that on the north side of the street there were no houses, and on the south side of the street there were only four houses in the distance of 1,200 feet; that there were 10 or 15 acres of the abutting property, which was used for agricultural and truck gardening purposes; that the city officers supposed the property owners had put in the granitoid sidewalk; that there was no hole or ditch or depression in the dirt pathway west of the granitoid sidewalk; that some one had put in the drain pipe aforesaid, and had not made it as wide as the granitoid sidewalk, thus leaving the dirt pathway 18 inches narrower on each side thereof than the granitoid sidewalk, and that the water had washed out a hole at each end of the pipe or drain; that the dirt pathway was rough, had hollows in it, and, whilst pedestrians used it, people generally used the macadamized portion of the street.

At the request of the plaintiff the court instructed the jury, inter alia, as follows: "(1) If the jury find from the evidence in this case that Arsenal street, at the places mentioned in the evidence, was an open, public, traveled street within the city of St. Louis; and if the jury find from the evidence that there was, at said times, a sidewalk on the south side of Arsenal street, graded and paved west from Portis avenue, with granitoid, about 160 feet, and that thence west to Kings highway there was a sidewalk unpaved; and if the jury find from the evidence that said sidewalk was used by the traveling public on foot; and if the jury find from the evidence that at the west end of the said granitoid in said sidewalk there existed a hole or depression; and if the jury find from the evidence that said hole or depression rendered the use of the said sidewalk dangerous, and was an obstruction to travel thereon by the traveling public; and if the jury find from the evidence that on the 29th day of July, 1900, the plaintiff was passing along said sidewalk, and that whilst so doing he stepped into said hole and fell, and sustained injuries to his person thereby; and if the jury find from the evidence that the city of St. Louis, by its...