Smith v. City of St. Joseph, 16999.

• Decision Date: 01 December 1930
• Docket Number: No. 16999.,16999.
• Citation: 35 S.W.2d 975
• Parties: LUCILLE C. SMITH, RESPONDENT, v. CITY OF ST. JOSEPH, APPELLANT.
• Court: Missouri Court of Appeals

35 S.W.2d 975

LUCILLE C. SMITH, RESPONDENT, v. CITY OF ST. JOSEPH, APPELLANT.

No. 16999.

Kansas City Court of Appeals. Missouri.

December 1, 1930.

Appeal from Circuit Court of Buchanan County. — Hon. Sam Wilcox, Judge.

AFFIRMED.

Shultz & Owen for respondent.

Miles Elliott, Herman Hess and Morte H. Craig for appellant.

CAMPBELL, C.

This an action to recover damages for personal injury alleged to have been sustained by plaintiff while walking upon Thirty-first Street, a street extending north and south in defendant city. Angelique Street is an east and west street terminating at Thirty-first Street. There is a concrete sidewalk five feet in width extending along the east side of Thirty-first Street. The paved portion of Thirty-first Street is thirty feet in width. Between said sidewalk and the paving is a space approximately five and one-half feet wide, called by appellant "terrace or bank" and by respondent "park or parkway." On the day in question, plaintiff, while walking southward on the east side of Thirty-first Street, left the sidewalk and walked across the space between the sidewalk and the paved portion of the street and in doing so stepped upon and into a sewer inlet located in that space and received the injuries for which this suit is brought. The cover or lid of the sewer inlet is approximately three and one-half feet in length north and south and two and one-half feet east and west, and at this point the sidewalk is approximately two and one-half feet higher than the curbstone of the pavement.

Plaintiff testified that weeds "eighteen inches high or maybe two feet" were growing on the space between the sidewalk and pavement and that the weeds had fallen down, and thus covered the sewer inlet.

Defendant presents but one question to this court as follows: "Defendant city contends that plaintiff was injured in a part of the street not wrought or intended for travel, and that it is, therefore, not liable to plaintiff." Therefore, the only question presented for decision is, was it the duty of the city to exercise ordinary care to keep the space between the sidewalk and the paved portion of the street at the place in question in a reasonably safe condition for travel? Defendant contends that space was never wrought or prepared for travel and was not intended as a passageway either in going along or across Thirty-first Street and that it was not a part of the street which the city intended or invited pedestrians to use, and argues that a city has the right to improve and open for public travel only a portion of a street and is not liable for injuries occasioned by a person using a portion of such street that has not been prepared for travel, notwithstanding dangerous defects may exist in such portion, and relies upon the holding in Ely v. City of St. Louis, 181 Mo. 723 (and other cases), in which it is said:

"The city lawfully exercised its governmental discretion to grade and prepare for use only the wagon roadway in part of the street; it was not required to grade and improve the whole eighty foot space and build sidewalks on it, and therefore is not liable for not having done so. The path through the weeds and over the uneven surface spoke for itself and told every one there was no sidewalk there and it invited no one to use it at the city's expense."

That case, as well as other cases announcing the same doctrine and cited in plaintiff's brief, are of no assistance here because they do not turn on the question as to whether a parkway in a street open for public travel is, within the meaning of the law, such a part of the public street as the municipality is charged with the duty to keep in a reasonably safe condition for travel by pedestrians.

It is said in appellant's brief that Robinson v. Kansas City, et al., 179 Mo. App. 211, 166 S.W. 343, "is on all fours with the case at hand." In that case she injured person was proceeding from a store down a path which she left and fell down the bank near an intersection of streets. The court said:

"The controlling and all-important fact of the case is that Mrs. Robinson was injured, not while using a part of a public street the city had invited her to use, but while on a part the city had left in a state of nature and, therefore, had not thrown open to the use of the public. A city's duty towards persons using its public streets springs from invitation, express or implied, and unless the city does something from which such invitation reasonably may be implied, it cannot be said to have assumed any duty towards the public with respect to merely platted or dedicated streets. The city had a right to prepare a way only twenty feet wide in the middle of a dedicated street of sixty feet, without assuming any duty or liability with respect to the portions of the street left in a state of nature."

"So in the present instance the bank spoke for itself and told plaintiff and his wife that it was a part of the street the city did not invite them to use and which, so far as the city and its contractor were concerned, they would go upon at their own risk of injury. A city is under no duty to travelers to fence off or otherwise guard portions of streets thus left in a state of nature."

It is also contended the case of Griffin v. City of Chillicothe, 279 S.W. 84, is controlling. In that case the street was originally laid out one hundred feet in width and improved throughout the entire width. Several years before the accident in question a strip thirty feet wide in the center of the street had been paved, leaving two parkways between the paved portion and the sidewalks, each about thirty feet wide. Later, a lot on the east side of the street was leased (not by the city)...