O'Malley v. City of Lexington

ELLISON, J. This is an action for personal injury received by plaintiff as a result from falling on a sidewalk in the city of Lexington. Plaintiff prevailed in the trial court. The principal ground urged by way of defense is that the walk was not in the street of the city and was not authorized or recognized by the city as a sidewalk; but on the contrary, that the walk was upon private property and for the existence of which the city was not shown to be in’ anywise responsible. From the evidence, including a plat filed with the briefs, it appears that the walk was laid on the east side of what is now known as Fifth street (but formerly as Forest) in front of block 4, upon which is a public school building. The walk was shown to be laid on what was originally, a.t least, the west end of the lots, a few inches outside of the street line. Defendant, therefore, claims that the walk was on private property. The evidence tended to show that the lots were fenced some thirty years prior to the injury to plaintiff, and that the fences were set back on the lot perhaps five feet, thus leaving the space upon which the walk was laid, apparently in the street. It further tended to show that the sidewalk in question was laid on this space by order of the city about ten years prior to the injury. This walk terminated at the southwest corner of the school building block, and the city ordered a macadam [700] crossing to be made connecting it with a sidewalk on the opposite side of the street. It was repaired by the city within a year prior to the injury. There was no other walk than this'one along block 4 and it had been used by the public continuously since its construction. Under these facts there can be no doubt of the city’s liability for an injury to a pedestrian using such walk who is injured by its becoming out of repair. It was negligence in the city to permit it to remain in an unsafe condition. ■ The defense urged is based on formality much too strict for practical application to the recognized rules governing the duty of cities towards the traveling public. There need not be a formal dedication for street purposes, nor need there be a condemnation. Possession by the city and use by the public with the acquiescence of the city are sufficient to cast the duty of caring for the people in the repair of that portion which they are thus permitted and invited to use. It is true that there must be an acceptance of the street by the city, but that can be shown where there has been neither a formal dedication nor a condemnation. Maus v. Springfield, 101 Mo. 613; Baldwin v. Springfield, 141 Mo. 205; Golden v. Clinton, 54 Mo. App. 100; Hill v. Sedalia, 64 Mo. App. 494; Whitney v. Essex, 42 Vt. 520; Phelps v. Mankato, 23 Minn. 276. So, therefore, we hold that notwithstanding the walk was laid just outside the street, as originally bounded, and just inside the line of private property as originally platted and abutting on said street, yet, if the city either built the walk; or ordered the abutting property-owner to build it; or, if neither of these was shown, if the city, finding the walk there, recognized it as a public thoroughfare for pedestrians or maintained the same by causing it to be repaired, it cast upon itself the duty of keeping it in such condition as not to injure persons traveling thereon in due care. This statement of our position, in effect, does away with a great part of the argument [701] of counsel for the city. The truth is, the undisputed facts in the case come close to placing the duty on the city to keep the walk in repair, as a matter of law. • As already stated, the place where the walk was laid had been within the apparent boundary of the street for more than thirty years. The fences were so run as to widen the street as originally laid out and there was nothing to contradict the appearance thus made. Then, for more than ten years .the walk had been laid and used by the public as the only thoroughfare for pedestrians, and it connected directly with a macadam crossing leading over to another walk extending on south on the opposite side of the street. It is certainly late for the city to deny responsibility for a walk it has thus recognized and has permitted its citizens to use for more than a decade. And these facts are supplemented by evidence tending to prove that the city repaired the walk. In thus stating the facts we may leave out of consideration plaintiff’s contention that the city ordered the walk to be laid. That order appears to have been inaccurately drawn and defendant contends that it does not refer to the walk in question, though as a matter of fact there is no doubt but that it does. Defendant has urged, at length, that the city must have built the sidewalk by some proper and formal ordinance duly -enacted by the council; or, that it must have recognized and assumed jurisdiction over it by repairs and the like by a formal ordinance. There are a number of instances in which cities are held not liable for injuries to property for grading streets; for the doing of public work and the like, unless the matter causing the injury had been duly authorized by ordinance. Many of these cases are cited by defendant. But we think them not applicable. They do not involve the consideration of the question in this case. The question in this case is, did the city accept the space on which the walk was laid as a part of the street, and did it accept or recognize the sidewalk? Manifestly, it is not ab [702] solutely necessary that such acts should be evidenced by a formal ordinance. To illustrate: If a city should •order a street graded by an ordinance or resolution so informal as to be void, as such; and under such void order the street should be graded and paid for by the city, it could not be said that such acts were not evidence tending to show a recognition of the street, although they might not, in many instances, be such as would render the city liable for damages for the grading. If the city ordered the sidewalk in question to be laid, or if it directed the repair of the walk, the question .affecting the present point is not as to the precise formality of such orders; but the question is as to the fact that there was an exercise of control. That our view is correct is made clear by the reflection that a city may, and very frequently does, become responsible for a street, or have a duty cast upon it in regard thereto, without its ever having been mentioned in an ordinance. Defendant complains that the court erred in refusing its instructions numbered four and seven. Number four was properly rejected. It declared that the mere user “without something more” did not impose a duty upon the city. In the first place, there was uncontradicted evidence of more than mere user; and secondly, it was not proper to leave to the jury, as it does, what would be “ a recognition ’ ’ of the street, or “ an exercise •of jurisdiction over it,” without connecting these things with some act which would be or tend to show a recognition or an exercise of jurisdiction. What we have said concerning the case generally •shows that we do not regard the refusal of instruction seven as harmful. It was perhaps meant by the request that plaintiff should be required to prove that the city “built or maintained the walk,” to hold her to prove the wording of the petition to the exclusion of any other mode of showing responsibility for the walk. It is not always that the words of a petition can be embodied in an instruction by the defendant. The word “main [703] tained” -would, in view of the evidence, be liable to mislead tbe jury, since it was a part of plaintiff’s case that tbe walk was not properly maintained by tbe city, and for that reason sbe was injured. We bave gone over tbe record and argument advanced and bave concluded that tbe merits of tbe case, under tbe legal principles involved, are with tbe plaintiff, and that tbe verdict was manifestly for tbe right party. Tbe judgment will therefore be affirmed. All concur.