Stealey v. Kansas City

• Decision Date: 01 February 1904
• Citation: 179 Mo. 400,78 S.W. 599
• Parties: STEALEY v. KANSAS CITY.
• Court: Missouri Supreme Court

78 S.W. 599

179 Mo. 400

STEALEY v. KANSAS CITY.

Supreme Court of Missouri, Division No. 2.

February 1, 1904.

MUNICIPAL CORPORATION—CITY LIMITS—OUT-LYING STREETS — JUDICIAL NOTICE — SIDEWALKS—DEFECTS —INJURY TO PEDESTRIAN— ULTRA VIRES ORDINANCE—DUTY TO REPAIR —ESTOPPEL.

1. Under Kansas City Charter, § 1, subd. 5, giving the city council exclusive control of the sidewalks of the city, and article 9, § 2, providing that the city shall have power to construct and reconstruct all sidewalks within the city limits, the city has no jurisdiction over sidewalks without the city limits, and is not liable for injuries caused by defects therein.

2. Rev. St. 1889, § 7846, provides that it shall be lawful for cities to work, grade, or macadamize roads or highways leading to and from such cities in such manner as may be provided by ordinance, but that such privilege shall not extend to a greater distance than five miles from the corporate limits of the city. Held, that such section conferred a mere license on cities, which was confined to working and macadamizing such roads, and did not authorize the city to construct sidewalks along the same, nor render it liable for injuries arising thereon.

3. While courts will take judicial notice of the streets of a city within the state, and their relation to each other, and the direction in which they run, they will not take judicial notice that a particular street is within five miles of the limits of a city.

4. Where, at the time a city ordinance was passed directing the improvement of a street and the construction of sidewalks along the same, such street was not within the city limits, the ordinance was ultra vires, and hence the construction of a sidewalk thereunder did not estop the city from contending that it was not liable for injuries by defects in such sidewalk on the ground that it was not required to repair the same.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by Lois Stealey against Kansas City. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Henry J. Latshaw, Jr., for appellant. R. J. Ingraham and L. E. Durham, for respondent.

BURGESS, J.

This is an action for $10,000 damages, for which plaintiff, a minor, sues by her next friend, alleged to have been sustained by her on a plank sidewalk on a street in Kansas City. The petition alleges that in the evening of July 9, 1898, the plaintiff, Lois Stealey, then a girl about 14 years old, was walking with several other persons south upon a plank sidewalk on the west side of Denver avenue, when she stepped with her right foot into a hole in the sidewalk, caused by a broken board, and received severe bodily injuries. The answer was a general denial. On the trial plaintiff was nonsuited on the ground that the evidence failed to show that Denver avenue was a public street in Kansas City at the time of the accident. In due time plaintiff filed motion to set aside the nonsuit and for new trial, which being overruled she saved her exceptions, and brings the case to this court by appeal for review.

The hole in the sidewalk had existed for several months prior to the accident. On December 4, 1899, Denver avenue was, and for some time prior thereto had been, a public highway in Jackson county, outside of Kansas City at that time. On that day the city undertook to annex certain territory, including Denver avenue. On January 19, 1891, this court held the extension illegal. In the meanwhile, viz., in October, 1890, the side-walk on which plaintiff was injured was laid by respondent pursuant to Ordinance No. 2,345 of Kansas City, approved September 10, 1890. The extension having been declared illegal, Denver avenue remained outside the city until December 2, 1897, when the city again extended its limits and again took in Denver avenue. The sidewalk where plaintiff was injured was on the date of her injuries open to general public travel, and had been so used for a number of years continuously prior to said accident. There were no signs or warnings of any kind to notify the public that said sidewalk was not on a street or avenue in said city, and the sidewalk where plaintiff was injured was at all of said times used by the general public for the purpose of travel in the ordinary manner. From the time that the Supreme Court held the ordinance extending the limits of Kansas City invalid, and up to and including the date of plaintiff's injury, defendant city did not attempt to exercise any control over said street. Plaintiff contends that the passage of the ordinance by defendant city providing for the laying of a sidewalk on Denver avenue was a recognition by the city of such street as a public street which it was bound to keep in repair. It seems to be well settled that where a city, by ordinance, has required a street within the city limits to be improved by the construction of a sidewalk therein, and that in pursuance of such an ordinance a sidewalk is constructed, the city is bound to keep it in repair, and is liable in damages for injuries occasioned by its failure to do so. Hill v. Sedalia, 64 Mo. App. 494; Golden v. City of Columbia, 54 Mo. App. 100; Byerly v. Anamosa, 79 Iowa, 204, 44 N. W. 359; Seymour v. Salamanca, 137 N. Y. 364, 33 N. E. 304. But it is clear from the record that at the time of the...