Smith v. Mabrey

• Decision Date: 25 October 1941
• Docket Number: 37250
• Parties: Wanda Louise Smith, by next friend, Appellant, v. O. E. Mabrey, Defendant, and the City of Cape Girardeau
• Court: Missouri Supreme Court

154 S.W.2d 770

348 Mo. 644

Wanda Louise Smith, by next friend, Appellant, v. O. E. Mabrey, Defendant, and the City of Cape Girardeau

No. 37250

Supreme Court of Missouri

October 25, 1941

Appeal from Cape Girardeau Court of Common Pleas; Hon. J. Henry Caruthers, Judge.

Affirmed.

Frank Lowry for appellant.

(1) Children of immature years are incapable of understanding danger and usually are conclusively presumed incapable of committing contributory negligence. Volgery v. St Louis, 32 S.W.2d 72, 20 R. C. L. 127, sec. 106; Beebe v. Kansas City, 34 S.W.2d 57; Ruka v Terrer, 195 Wis. 285, 218 N.W. 358. (2) Long, continued use for sidewalk purposes by citizens constitutes acceptance of pathway and renders city liable for maintenance, whether sidewalks were constructed or not. Benton v. St Louis, 217 Mo. 706; Edmonton v. Kansas City, 57 S.W.2d 690; Connors v. Nevada, 188 Mo. 156; Jackson v. Sedalia, 187 S.W. 127. (3) A city cannot contend that because it has not improved a street in an old and well-settled part, the streets surrounding which have been improved, it has not impliedly invited persons to use the sidewalk, where of necessity a large number of people must use such sidewalks in passing to and fro along such street. Brigman v. St. Joseph, 251 S.W. 724. (4) Where a space was left on each side of a well-defined, graded roadway, it being suitable for travel by pedestrians and so used there was a sufficient invitation for its use as a sidewalk, to render city liable for defects negligently allowed to exist. Jackson v. Sedalia, 193 Mo.App. 597; Steck v. Lancaster, 206 S.W. 388; Smith v. St. Joseph, 35 S.W.2d 835; Shaw v. Frisco Ry. Co., 9 S.W.2d 835; Benton v. St. Louis, 217 Mo. 706. (5) Where the negligence of the city in failing to maintain a reasonably safe passageway forces the pedestrian into the street and the consequent danger from the vehicle traffic thereon, the city's negligence concurs with that of the motorist and constitutes a cause of action for injury. Lindman v. Kansas City, 271 S.W. 516; Shafir v. Carroll, 274 S.W. 756; Strother v. Sieben, 282 S.W. 502; 193 S.W. 966, 266 S.W. 953, 240 S.W. 272, 274 S.W. 765, 282 S.W. 506, 287 S.W. 310, etc.; Stollhans v. St. Louis, 121 S.W.2d 808.

R. B. Oliver, III, for repondent.

(1) There is no evidence in the record that the passageway in question was within the limits of a dedicated street; nor is there any evidence that it was situated on public property of any nature; nor is there any evidence that the city did any acts at all to acquire jurisdiction over or control of the passageway in question. (a) Unless the city had jurisdiction or control over the passageway, either actually or by invitation to the public, there can be no liability on the city. Downend v. Kansas City, 156 Mo. 60, 56 S.W. 902; Benton v. St. Louis, 217 Mo. 687, 118 S.W. 418; 7 McQuillin, Municipal Corps. (2 Ed.), sec. 2933. (2) Where a city has never improved that part of a street which would ordinarily be used for sidewalk purposes, it is not liable for injuries caused by any defects in a path worn along such part of the street. Ely v. St. Louis, 181 Mo. 723, 81 S.W. 168; Metz v. Kansas City, 229 Mo.App. 402, 81 S.W.2d 462. (a) A city in determining what part of a street it will improve and grade acts in its delegated governmental capacity, and is not answerable to an individual for a failure to improve parts of a street. Ely v. St. Louis, 181 Mo. 723, 81 S.W. 168; Metz v. Kansas City, 229 Mo.App. 402, 81 S.W.2d 462; 6 McQuillin, Municipal Corps. (2 Ed.), sec. 2805. (3) Appellant was required to prove that negligence on the part of the city was the proximate cause of the injury complained of. There is no such proof in the record, and the action of the trial court in sustaining the demurrer as to the city was correct.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

James H. Smith filed this suit as the natural guardian of Wanda Louise Smith, his minor daughter, to recover $ 20,000 in damages from the defendant city for personal injuries sustained by Wanda when she was struck by a motor car driven by defendant Mabrey. At the close of plaintiff's evidence the trial court sustained a demurrer filed by the city, and from the judgment entered plaintiff appealed.

Plaintiff's theory of the city's liability is, that the city failed to maintain a reasonably safe sidewalk on the west side of North Main street, which, it is alleged, forced Wanda to attempt to cross the street to reach a sidewalk on the east side of North Main street, at which time she was struck by the car. Plaintiff argues that the negligence of the city in failing to maintain a safe sidewalk concurred with the negligence of the defendant Mabrey in producing the injury and therefore the city must respond in damages for such injuries. The evidence disclosed that plaintiff, Wanda, was struck at about noon on March 5, 1937, while crossing North Main street, from west to east, near the intersection of Pearl and North Main streets. Plaintiff was seven years old at the time. She and a companion had attended the Washington school located about two blocks west of North Main street and having been dismissed for the noon hour were on their way home for lunch. They walked east on a sidewalk on the north side of Pearl street and when they reached North Main street they desired to go north to their home. The evidence was that there was no improved sidewalk on the west side of Main street immediately north of Pearl street, which point is referred to in the evidence as being in front of Jones' store. On the east side of that street there was an improved sidewalk. Wanda's injuries were such that she was not able to testify at the trial. Her companion, Martha Fern Kirkpatrick, age seven, testified as follows:

"Q. Now tell us, Martha, why didn't you and Wanda walk up the sidewalk along there by Mr. Jones's store? A. It was muddy . . .

"We came along the sidewalk until we got in front of Mr. Jones' Store and Wanda went on out into the street, Main Street, when the car hit her. We didn't go up the side of the street that Jones' store was on. . . .

"Q. Tell the jury why you didn't walk up the side of Main Street that Mr. Jones' store was on? A. Because there wasn't no sidewalk there.

"Q. Was there anything else the matter? A. Yes.

"Q. What else was the matter? A. There was water there, puddles of water.

"Q. There was a sidewalk across Main Street over by the shoe factory? A. Yes, sir.

"Q. Was Wanda trying to get over there to that sidewalk, or do you know? A. Yes, she was."

On cross-examination she testified:

"Wanda and I usually went to school and back together. We usually went in the car but we walked home at noon. I would go down the steps and come along by Mr. Jones' store and then go across to the sidewalk by the shoe factory whether it was muddy or not. I would go on over to the sidewalk. The day Wanda was hurt there were no cars to keep me from going straight across from Jones' store to the shoe factory sidewalk."

The shoe factory referred to in the evidence was located on the east side of North Main street to the north of Pearl street. About fifteen hundred employees of the factory had not been dismissed from their work at the time of the accident. Photographs and the oral evidence of plaintiff disclosed that the sidewalk space in front of Jones' store was uneven and unimproved.

Appellant and respondent briefed the question of the city's duties with reference to maintaining sidewalks, respondent urging that the city had never improved that part of the street in question ordinarily used for sidewalk purposes, and was therefore not liable for defects therein. But let us concede for the sake of argument only that it was the duty of the city to maintain a reasonably safe walk at the point in question and that the walk as it existed at the time was not reasonably safe. Even so conceding the question remains, was the defective condition a proximate cause of plaintiff's injuries? Two or more persons may be guilty of negligent acts in producing an injury so as to render each and all liable. [45 C. J. 920, sec. 485.] But is not the alleged negligence of the city in this case too remote to be considered a contributing cause so as to render the city liable? We think so. Plaintiff in support of her contention cited the following cases: Lindman v. Kansas City, 308 Mo 161, 271 S.W. 516; Shafir v. Carroll, 309 Mo. 458, 274 S.W. 755 (two cases); Strother v. Sieben, 220 Mo.App. 1027, 282 S.W. 502; Daneschocky v. Sieben, 282 S.W. 506; Daneschocky v. Sieben, 195 Mo.App. 470, 193 S.W. 966; Adelman v. Altman, 209 Mo.App. 583, 240 S.W. 272; Strother v. Carroll, 287 S.W. 310. All of these cases arose out of the same accident. A contractor preparing to erect a building had placed building material in the street and had removed the sidewalk so as to obstruct all the sidewalk and a portion of the street at that point. An ordinance of Kansas City required contractors in such cases to construct a temporary walk around the portion of the street obstructed. The contractor had failed to comply with that ordinance. A number of young people, while on their way home from a party, reached the obstruction about midnight. They attempted to pass around it by walking in the street. While thus walking around the obstruction a car driven at an excessive rate of speed struck the party killing four...