Tritz v. City of Kansas

• Decision Date: 31 October 1884
• Citation: 84 Mo. 632
• Parties: TRITZ et al. v. THE CITY OF KANSAS, Appellant.
• Court: Missouri Supreme Court

84 Mo. 632

TRITZ et al.

v.THE CITY OF KANSAS, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.--HON. T. A. GILL, Judge.

REVERSED.

Wash Adams and R. H. Field for appellant.

(1) The court erred in rejecting the testimony offered by defendant tending to show that the city engineer had not been guilty of negligence. See charter of Kansas City; Dewey v. Detroit, 15 Mich. 307; Dillon on Mun. Corp. (3 Ed.) secs. 308, 328, 948 et. seq. Taylor v. Carondelet, 22 Mo. 105; Miller v. Sedalia, 53 Mo. 159. The city can act in no way in ordering and making repairs except in the mode prescribed in its charter, that being pointed out is exclusive of every other mode. Ruggles v. Collier, 43 Mo. 353; also, and particularly, page 395, same; Saxton v. Beach, 50 Mo. 488; Leach v. Cargill, 60 Mo. 316; Saxton v. City of St. Joseph, 60 Mo. 153; Thompson v. Boonville, 61 Mo. 282; City of Louisiana v. Miller, 66 Mo. 467. The rule is that municipal corporations are not liable for injuries resulting from failure to repair sidewalks, streets, etc., in the absence of an express statute to that effect, unless there is a statute which clearly imposes an absolute and unqualified duty upon the municipal corporation itself to keep the same in repair. It is not sufficient to make it liable that this duty may be imposed upon its common council. Reardon v. St. Louis County, 36 Mo. 555; Swinfield v. Franklin County, 73 Mo. 279, and 6 Mo. App. 39; Tranter v. City of Sacramento, 61 Cal. 271; Winbiggler v. City of Los Angeles, 45 Cal. 36. Dillon on Mun. Corp. (3 Ed.) section 962 et seq., to section 1017 inclusive. A municipal corporation cannot be held liable for defective legislation of its common council, or for the failure to legislate. Saxton v. City of St. Joseph, 60 Mo. 153. The only duty implied by appellant's charter of keeping sidewalks in repair in giving the common council exclusive control of the streets, is a duty of the common council, not as a servant or agent of the city, but as a public and state agency; hence the city is not liable under the charter, for the same reason that counties are not liable in respect to defective roads, etc. Swinford v. Franklin County, 73 Mo. 279. For city cases on this proposition precisely in point, see 95 N. Y. 316; Winbigler v. City of Los Angeles, 45 Cal. 36; also, Tranter v. City of Sacramento, 61 Cal. 271; Dillon on Mun. Corp. (3 Ed.), condition 2 of section 1017. But we contend, also, that this power granted to the common council of appellant, if not exercised by them, does not render appellant liable for their negligence or misfeasance in respect thereto, because such power or duty was conferred upon the common council by the legislature, not for the corporate or private benefit of the city, but for the benefit of the public. Detroit v. Blakeby, 21 Mich. 84; Freeholders of Sussex v. Strader, 3 Harr. (N. J.) 108; 46 Texas 526; 122 Mass. 344; Dillon on Mun. Corp., sections 965, 974, 975, et seq.; Murtaugh v. City of St. Louis, 44 Mo. 479; Heller v. Mayor, etc., Sedalia, 54 Mo. 159. It is entirely with the legislature whether a municipality shall, or shall not, be liable for injuries resulting from defective sidewalks. 30 Minnesota 545, 186. (2) Instruction numbered seven asked by appellant should have been given. It was a question of fact for the jury to determine, whether or not it was necessary that the entire sidewalk should be kept in repair to accommodate the travel thereon; for, if only a portion of it was defective and the remainder was good, safe and sufficient for the travel thereon, appellant could not properly be held liable herein. Craig v. City of Sedalia, 63 Mo. 417, and cases cited; Dillon on Mun. Corp. (3 Ed.) section 1016; City of Quincy v. Barker, 81 Ill. 300. There was sufficient evidence before the jury to warrant this instruction. (3) The petition does not allege negligence or any facts constituting negligence in the matter complained of, hence the motion in arrest of judgment should have been sustained. Winbigler v. Los Angeles, 45 Cal. 36; Tranter v. Sacramento, 61 Cal. 271. Dillon on Mun. Corp. (3 Ed.) section 1025.

Dunlap & Freeman for respondent.

(1) The court did not err in rejecting the testimony of the city engineer. That it was the duty of appellant to keep its sidewalks in safe condition, and that it is liable for damages caused by its failure to do so, is shown by the following authorities: Blake v. City of St. Louis, 40 Mo. 569; Bowie v. Kansas City, 51 Mo. 454; Smith et al. v. The City of St. Joseph, 45 Mo. 449; Oliver v. The City of Kansas, 69 Mo. 79; Russell v. Columbia, 74 Mo. 480; Halpin v. Kansas City, 76 Mo. 335; Haire v. Kansas City, 76 Mo. 438. (2) This is not a case of defective legislation on the part of the city, but one of its neglect to perform a plain and well defined duty. (3) Instruction numbered seven asked by appellant, was properly refused. First, because there was no evidence to support it; and secondly, because it is based upon a false construction of the law. (4) The petition sufficiently alleged appellant's negligence.

EWING, C.

A suit based upon the following petition was commenced in the circuit court of Jackson county in 1881: “That plaintiffs were husband and wife; that defendant is a municipal corporation, etc., and that as such corporation has exclusive control and power over the streets, sidewalks, alleys, landings, public grounds and highways of the city, to open, alter, widen, extend, establish, grade, pave, or otherwise improve, clean and keep in repair the same, to prevent and remove all encroachments thereon, or obstructions therefrom, and to regulate the building of vaults under sidewalks. That a certain street in said city, known as Sixth street, was and is one of the principal thoroughfares, and is used by the citizens thereof, and the public generally, and it was and is the duty of said defendant to keep the sidewalks on the north side of said street from Broadway to Bluff street in good and sufficient repair, so that it would be safe for all persons passing over and along them. That on or about the second day of December, 1880, there was a broken plank in said sidewalk, on the north side of said Sixth street, about two hundred and eighty feet west from Broadway street, said plank being broken, left in said sidewalk a dangerous hole, which said dangerous hole was in said sidewalk on the second day of December, 1880, and had been there for a long time; that it was not on said day, and had not been at any time protected by guards or any signal to indicate danger so as to prevent persons from falling into the same.

That the plaintiff, Frances Tritz, on the second day of December, 1880, was lawfully traveling on said sidewalk on the north side of said street, between Broadway and Washington streets, and was wholly unaware of danger, or that there was a hole in said sidewalk, and did, accidentally, and without fault or negligence on her part, fall into said hole, whereby she received great bodily injury, and was made sick, and sore, and lame, and suffered, and does yet suffer great pain. That by said fall she dislocated her shoulder, which, on account of her age and the severity of the injury, has been left in an almost useless condition by becoming stiff and lame. On account of the facts above set out, the plaintiff, Frances Tritz, has been damaged in the sum of $5,000, for which sum and costs she asks judgment.”

Defendant denied the allegations of the petition, and for further defence, says that the plaintiff ought not to have or maintain this suit for the reason that at the time and place of the alleged injury, plaintiff was guilty of negligence, which negligence on the part of plaintiff then and there directly contributed to the happening of said injury; and that such injury was not the result of any carelessness or negligence on the part of the defendant as charged in plaintiff's petition. Wherefore, defendant asks to be dismissed with its costs.

Plaintiff introduced evidence tending to prove the allegations of the petition and that the alleged defects in the sidewalk had been there for a long time, from one to two months or more, and rested.

Defendant then read in evidence certain ordinances of the city, and introduced John Donnelly, the city engineer, as a witness, who testified as follows: “I am city engineer of defendant, and have been since May, 1880; I never knew of the defect complained of before the injury received by Mrs. Tritz, and, in fact, never knew or heard of it until some time afterwards; there are about eighty miles of sidewalk in this city, and were all of last year.” Defendant then offered to show by the witness, “that the forces of defendant allowed by ordinance were faithfully and actively engaged in keeping its sidewalks in repair, ever since the passage of said ordinance, and that the force so allowed have done all in their power to keep all of the sidewalks of the defendant in good repair, and that the engineer has, also, during said period, faithfully devoted his time in the discharge of this portion of his duties to such purpose.” The plaintiff objected to this evidence and her objections were sustained.

The ordinances referred to by the defendant were to the effect that: “The city engineer is hereby charged with the duty of keeping all pavements and planking of sidewalks, and all curbing and guttering along the sides thereof in good repair.” Also, “section 1. That for the purpose of carrying out all ordinances of the city concerning improvements, repairs, plans, maps and condemnations, such assistance as may be necessary shall be employed therefor in number not to exceed the provision herein; and the compensation to be as herein provided as follows, to-wit: Two carpenters for sidewalk and crossing repairs at two dollars each per day; one horse and wagon for delivery of lumber for such rerepairs, and the driver to work as helper to the carpenter force at two...