State ex rel. City of Springfield v. Cox

• Decision Date: 03 March 1931
• Docket Number: 30940
• Citation: 36 S.W.2d 102,327 Mo. 152
• Parties: The State ex rel. City of Springfield and Springfield Gas & Electric Company v. Argus Cox et al., Judges of Springfield Court of Appeals
• Court: Missouri Supreme Court

36 S.W.2d 102

327 Mo. 152

The State ex rel. City of Springfield and Springfield Gas & Electric Company v. Argus Cox et al., Judges of Springfield Court of Appeals

No. 30940

Supreme Court of Missouri

March 3, 1931

Certiorari to Springfield Court of Appeals.

Writ quashed.

E. A Barbour, Jr., A. P. Stone, Jr., and Frank B. Williams for relator.

(1) The iron pole in question is not located "in a public driveway," but is located "about three inches south of the south line of the paved portion of the railroad property, and in the sidewalk portion of the street about seven or eight inches west of the west line of the street paving proper of Main Avenue;" and, being so located said pole is situated outside the curb lines, in the sidewalk portion of the street, and, "under the evidence most favorable to the plaintiff," is in the approach to a private driveway. Neither the city nor the electric company is liable for the condition of or obstructions in any portion of a private driveway, which may be within the street lines but outside the way dedicated to and improved for vehicular traffic by the city. Griffin v. Chillicothe, 311 Mo. 648, 279 S.W. 84; Clinkenbeard v. St. Joseph, 10 S.W.2d 60. (2) Since the iron pole in question is a lawful structure, and since it is conceded "that the City and the lighting company had the right to place the light pole where it was placed," and since it, therefore, did not constitute a nuisance on a public street, relators were under no duty to fence, guard, or mark said pole in any way "so as to apprise persons using said driveway of its presence therein." Seibert v. Ry. Co., 188 Mo. 657; Julia Bldg. Assn. v. Bell Tel. Co., 88 Mo. 266; Gay v. Telegraph Co., 12 Mo.App. 485. (3) When plaintiff crossed the established curb line, though no curbing was there, she entered the approach to the private driveway of the railroad company, and instantly lost her status as a traveler upon the public street, and thereupon became a licensee or invitee of the railroad company, which former status she did not regain before she was hurt. Hence, she was not, when the collision occurred, a traveler upon the street. Glasser v. Rothschild, 221 Mo. 180; Carr v. Ry. Co., 195 Mo. 214; Griffin v. Chillicothe, 311 Mo. 648.

Sam M. Wear, Nat W. Benton and Arch A. Johnson for respondents.

(1) The character of the locus in quo is a question of fact. The question whether the pole, left standing in the street, rendered such street unsafe and dangerous to those traveling with vehicles over it, either by day or night, was a question of fact which was for the jury and not for the court to determine from the evidence. Burnes v. St. Joseph, 91 Mo.App. 489; Woodson v. St. Ry. Co., 224 Mo. 685; City of Puxico v. Harbin (Mo.), 252 S.W. 394. (2) Relators' duty to plaintiff as traveler in public highway extended to private property line west of pole in question. A city must keep such street, or such part thereof as it undertakes to open and put in condition in its entirety, reasonably safe for travel. Walker v. Kansas City, 99 Mo. 652; Kossman v. St. Louis, 153 Mo. 293; Marshall v. Kansas City, 297 Mo. 304; Ely v. St. Louis, 181 Mo. 723; Townsend v. Joplin, 139 Mo.App. 394; Burnes v. St. Joseph, 91 Mo.App. 489. (3) Character of obstruction as a lawful one in a lawful place, and therefore not a nuisance, does not relieve its keepers of the duty to maintain it without negligence, and to keep the street reasonably safe for the traffic for which it is improved and used. (a) The pole in question was not in a usual or expected place, for while permanent obstructions such as telephone and telegraph poles, hydrants, and the like have been permitted within the dedicated streets of cities, yet their location within the vehicular trafficways of streets has never been sanctioned -- rather their proper place has been defined to be between the curb actually constructed and the property line, because they are less dangerous to pedestrians than to vehicular traffic, because custom has long found them there and because, by reason of which custom, pedestrians expect them there. Julia Bldg. Assn. v. Bell Tel. Co., 88 Mo. 258; Gay v. Telegraph Co., 12 Mo.App. 485; Clinkenbeard v. St. Joseph, 10 S.W.2d 60; Woodson v. St. Ry. Co., 244 Mo. 685. (b) The fact that a contrivance or obstruction is necessary and usual to effect the purposes desired will not justify the city in maintaining it in such a position and under such conditions as to render the way defective. Burnes v. St. Joseph, 91 Mo.App. 489; Proctor v. Poplar Bluff, 184 S.W. 123. (c) Even where permanent obstructions have been held lawful in streets, and as such lawful structures do not constitute a nuisance, yet it has never been held by this court that such structure could be maintained in such condition that it was not visible and so as to constitute it dangerous to the use to which its location was intended.

OPINION

Ragland, C. J.

Certiorari. In this proceeding relators seek to have quashed, on the ground of conflict, the opinion and judgment of the Springfield Court of Appeals in the case of Mary E. Cunningham, respondent, v. City of Springfield and Springfield Gas & Electric Company, appellants, lately pending before it on appeal from the Circuit Court of Greene County. The rulings of the court and the facts on which they were based, as disclosed by the opinion, are as follows:

"Action for damages for personal injury. Plaintiff recovered and defendants appealed.

"The St. Louis-San Francisco Railway Company was also a party defendant, but by peremptory instruction to the jury a verdict was returned in its favor, hence it is out of the case.

"The plaintiff rode as a guest in the automobile of her husband who drove to the depot of the railroad company on a dark rainy night to mail a letter. He drove off the west side of the street on to a paved parking space on the south side of the depot and parked his car there while he went through the depot to the other side and deposited his letter in a mail box. He then returned to the car and drove around some other parked automobiles and then turned to drive back east into the street in order to return home. After he passed the east line of the railroad property a little more than eight feet his car collided with an electric light pole situated a few inches west of the west line of the paved part of the street proper and inside of the east line of the sidewalk, and as a result of that collision his wife, this plaintiff, was injured.

"The evidence tends to show that the railroad owns an area of ground on the south side of this depot and abutting on the west side of Main Avenue in the city of Springfield, a distance of about 117 feet. Main Avenue was widened and paved by the city from College Street running north past the area of ground above referred to as belonging to the railroad. From College Street north an integral curb was built on the west side of the paved part to Main Avenue until it reached the South line of the railroad property above described. At that point the curb was discontinued and a concrete sidewalk nine and one-half feet wide connecting with the street paving on the west side thereof and extending west to the property line of the railroad and running north the entire length of the railroad property was constructed by the railroad. There was no curb constructed at the curb line along the railroad property, but instead there was a slight depression there for drainage purposes. Along the entire length of the railroad property there was no curb on the west side of Main Avenue, but the concrete street paving and the concrete sidewalk were connected. The strip of ground owned by the railroad on the west side of Main Avenue and south of its depot had been improved by the railroad as follows: Eighty-four feet on the north side of this strip abutting the west side of Main Avenue had been paved with concrete from said street back west a considerable distance. The remainder of the strip abutting the west side of Main Avenue was covered with chats and its surface was level with the paved portion of the strip and also level with the west line of the concrete sidewalk. The light pole with which the automobile in which plaintiff was riding collided was located about three inches south of the south line of the paved portion of the railroad property, and in the sidewalk portion of the street about seven or eight inches west of the west line of the street paving proper of Main Avenue. In passing from Main Avenue into the area of ground owned by the railroad and in coming back from that area to the street, persons in automobiles drove on both sides of this light pole.

"The petition alleged that this light pole was negligently erected and maintained by defendants in a public driveway without being fenced, guarded or marked in any way so as to apprise persons using said driveway of its presence therein.

"Plaintiff testified that she was keeping a lookout as best she could but in the darkness and rain she could not distinguish through the windshield objects in front of the car and she did not see the light pole until after the car struck it. That the car was being driven slowly by her husband at the time. Other witnesses also testified that the night was very dark, and in the rain and darkness the pole could not be distinguished by a person coming toward the street from the railroad property. There was a street light on a bracket on the east side of this pole about eighteen feet above the ground, but it did not throw light west of the pole to any considerable extent. The pole was black and that fact, coupled with the fact that it was raining hard and the night was very dark, made it very hard to see the pole when approaching it from the west. Neither ...