Williams v. City of Mexico

• Decision Date: 03 February 1931
• Docket Number: No. 21356.,21356.
• Citation: 34 S.W.2d 992
• Parties: ED WILLIAMS, RESPONDENT, v. THE CITY OF MEXICO, MISSOURI, APPELLANT.
• Court: Missouri Court of Appeals

34 S.W.2d 992

ED WILLIAMS, RESPONDENT, v. THE CITY OF MEXICO, MISSOURI, APPELLANT.

No. 21356.

St. Louis Court of Appeals. Missouri.

Opinion filed February 3, 1931.

Appeal from the Circuit Court of Montgomery County. — Hon. Emil Roehrig, Judge.

AFFIRMED.

W.C. Hughes, W.W. Botts and Rodgers & Buffington for appellant.

(1) The defendant city is not liable for injuries occurring outside its corporate limits and the court erred in failing to sustain the demurrers offered to the evidence and to instruct the jury that defendant city was not liable. Stealey v. Kansas City, 179 Mo. 400; Downend v. Kansas City, 156 Mo. 60; Griffin v. City of Chillicothe, 279 S.W. 85. (2) Plaintiff was guilty of contributory negligence as a matter of law. 20 Ruling Case Law, sec. 3, pg. 8. (3) The defendant city was not an insurer of plaintiff's safety and the court erred in refusing to give defendant's instructions so declaring the law. 20 Ruling Case Law, sec. 98, pg. 112. (4) The court erred in failing to hold and instruct the jury that a verdict against the defendant city in this case would be unconstitutional and void. Mo. Pac. Railroad Co. v. Auet, 41 Sup. Ct. Rep. 594.

Fry & Hollingsworth for respondent.

(1) That portion of Old Liberty street extending between Grand avenue and the east corporate limits of the city of Mexico was by long user a public street regardless whether it had ever been formally dedicated. Benton v. City of St. Louis, 217 Mo. 687; Wright v. Hines, 235 S.W. 831. (2) The city, after notice, is liable for injuries occasioned by pit-falls so near a street as to render the street dangerous to travel regardless of whom or by what they were caused. Bassett v. City of St. Joseph, 53 Mo. 290; Baldwin v. Springfield, 141 Mo. 205; Chance v. St. Joseph, 195 Mo. App. 1, 190 S.W. 24; Halpin v. Kansas City, 76 Mo. 335; Fox v. Joplin, 297 S.W. 449; Higman v. Quindaro Twp., 89 Kan. 476, 132 Pac. 215; Cutting v. Inhabitants of Shelbourne, 193 Mass. 1, 78 N.E. 752. (3) It is the duty of a city to maintain barriers across a public street where it ends so near a precipice as to endanger persons traveling thereon. Chance v. City of St. Joseph, 194 Mo. App. 1, 190 S.W. 24; Wiggin v. St. Louis, 135 Mo. 558; Ballentine v. Kansas City, 126 Mo. App. 130; Halpin v. Kansas City, 76 Mo. 335. (4) Plaintiff was guilty of no negligence contributing to his injuries. Chance v. City of St. Joseph, supra. (5) The giving of cautionary instructions is a matter largely within the discretion of the trial court, and it will not be convicted of error unless there is a manifest abuse of its discretion. Wiedeman v. Taxicab Co., 182 Mo. App. 523; Beasley v. Bank, 114 Mo. App. 406. (6) Assignments of error not developed or further referred to are considered as abandoned. State v. Whitsett, 232 Mo. 511; Mason v. Wilks, 288 S.W. l.c. 939.

NIPPER, J.

This action was instituted in the circuit court of Audrain county, Missouri. The petition is in two counts. In the first count plaintiff seeks to recover damages in the sum of $20,000 for injuries sustained by him to his person; in the second count he seeks to recover $225 for injury done to his automobile, by reason of his automobile, in which he was riding, being driven over the west stone abutment which had formerly supported the west end of a highway bridge which had spanned Salt River Creek just east of the city of Mexico. This bridge had been torn down by the State Highway Department and a new bridge erected over another road further north leading into the city of Mexico. The stone abutment over which the car was driven was located thirty-six feet east of and outside the corporate limits of the city.

Upon a trial plaintiff obtained judgment on the first count of his petition in the sum of $477, and on the second count in the sum of $75. From this judgment defendant city has appealed to this court.

The defendant is a city of the third class.

Prior to the fall of 1925, Liberty street extended eastward from South Jefferson avenue, the main north and south thoroughfare in the city of Mexico, to a point approximately 330 feet west of the east corporate limits of the city of Mexico. It then veered at an angle of twenty-five degrees in a southeasterly direction until it reached Grand avenue, a north and south street just inside the east corporate limits of the city. Crossing over Grand avenue, it then veered back northeasterly to the east corporate limits and connected with State Highway No. 22, which led on eastward out of the city. Salt River is a small stream running in a general north and south direction, and near the east corporate limits of the city of Mexico. At a point where State Highway No. 22 originally connected with East Liberty street there had been a bridge, the west approach of which was thirty-six feet east of and outside the east corporate limits of the city, whereby a continuous thoroughfare was made by way of East Liberty street and State Highway No. 22 into and out of said city.

About a year before this accident occurred, for the purpose of eliminating the angle made at the connection of Liberty street with State Highway No. 22, this highway was re-located so as to enter the city of Mexico north of the old location, making a straight route. Liberty street was re-located so as to connect with the new highway, and a new bridge was built by the State Highway Commission about ninety feet north of the old bridge, and the old bridge was removed, leaving the foundation and approaches as they were. East Liberty street or old Liberty street was macadamized and curbed, and street lights were located along its route.

In the afternoon of May 4, 1926, the plaintiff rode in his automobile to Mexico from his home about twenty-three miles southeast of that city. Plaintiff and three other persons were in the car. They were all colored people. They came to State Highway No. 22 several miles east of Mexico, and entered the city of Mexico by way of this State highway, and crossed over the new bridge and proceeded westward over Liberty street as re-located. After entering the city of Mexico, they drove to the home of plaintiff's son. About nine o'clock P.M. of that evening all these parties got into the car and started home. Plaintiff was riding in the rear seat. Thinking they were proceeding correctly in order to cross over the bridge that they had come in on that afternoon, they followed this...