Scheffer v. City of Hardin

BROADDTJS, P. J. The plaintiff’s suit is to recover damages occasioned by a fall she alleges she received on one of defendant’s streets. Plaintiff’s evidence tends to show, that on the night of February 28,1908, while in the company of her mother and brother, when she was passing along on what was called Elm street, that in stepping from’ the sidewalk onto a crossing in an alley that intersected said [16] street, ber beel went into a bole in tbe crossing, and caugbt there, wbicb caused ber to fall whereby she was injured; and that at tbe time she was in tbe exercise of due care. Her evidence was that tbe sidewalk was constructed of concrete and tbe crossing where she was injured of planks; that tbe latter was in an unsafe condition and bad been so for a long time previous. It was shown by tbe evidence of tbe mayor and other witnesses that Elm street was one of tbe principal streets of tbe town and used generally by tbe traveling public. Tbe purport of tbe mayor’s evidence was that tbe city bad graded Elm street and that tbe crossing bad been in since 1890. He was asked: “Since you have been mayor has the authorities of tbe city of Hardin laid any walk of any kind on Elm street in tbe city of Hardin, street or crossing?” Answer: “Yes, we have graded tbe streets.” Tbe plaintiff in order to locate tbe town introduced over defendant’s objections a dedication and plat wbicb were filed for record January 22, 1869. Tbe objection was that they were indefinite and failed to show tbe tract of land on wbicb tbe town was located. Tbe language of the dedication was as follows: “Dedication. Tbe within described plat, streets and alley with tbe various courses composing tbe plat of tbe town of Hardin is of tbe following real estate to wit: Tbe Southwest quarter of Section thirty-three and thirty-two Township (52) Fifty-two, North, Range Twenty-six West, and duly laid out by us for said town of Hardin, Ray County, Missouri on tbe 16th day of February 1869.” Tbe plat shows tbe streets, alley and blocks and lots of tbe town, but it nowhere shows in what part of tbe two quarter sections it is located. Tbe evidence of tbe defendant tended to discredit that of tbe plaintiff as to tbe condition of tbe sidewalk [17] and to show that she had been guilty of contributory negligence. The finding and judgment were for the plaintiff and defendant appealed. It is urged by appellant that the court erred in the admission as evidence the said plat to prove the location of the town of Hardin. The argument is that it is void for uncertainty. In a sense that is true. It would not be sufficient as evidence where there was a contest over title to lands, or where such question is involved. [McCormick v. Parsons, 195 Mo. 91; Campbell v. Johnson, 44 Mo. 247.] But the question of title is in no way a matter of controversy in this case. This evidence was offered to locate the town of Hardin. Whereas it failed to locate it in any particular place, in the section, it did locate it in a certain township in Ray county, Missouri. We do not think it was necessary for the plaintiff to have resorted to a more definite location, especially in view of the following admission in defendant’s answer viz.: “Now on this day comes the defendant in the above entitled cause, and for amended answer to the petition of the plaintiff herein, admits it now is and at the date mentioned in said petition, a muncipal corporation organized and incorporated under and by virtue of the statutes of the State of Missouri,” etc. The plat served no useful purpose but could have worked no prejudice for the court takes judicial cognizance of the town and its location as being a municipal corporation. The plaintiff was not required to show the location of the town by metes, distances and boundaries but only to show in a general way that Elm street was within the town limits whatever they might be. When she proved that Elm street was one of the principal streets 'Of the town she did all that the law required of her so far as locating the place of her injury. But it is contended that the evidence fails to show that the town had ever at any time assumed jurisdiction [18] over Elm street and. that plaintiff, failed for that reason to make out a case for recovery. To sustain this theory appellant has called onr attention to certain decisions of our courts. It is said: “The mere dedication of a city street to public use by means of a recorded plat does not of itself render the municipality liable for negligent failure to keep the street in repair. It is necessary further to show that the street in question has been accepted before that liability begins. Even in acceptance of a dedication, transferring title to the street in trust for the public does not impose a liability to keep the dedicated land in repair as a street. The latter obligation does not attach until the corporation, in some official and appropriate manner, has invited or sanctioned its use as a street by the public. But such sanction may be given by acts of its proper officers as well as by acts in the form of ordinances.” [Baldwin v. City of Springfield, 141 Mo. l. c. 212.] And so is the law in Ely v. St. Louis, 181 Mo. 728, and other cases. The decisions noted apply to additions to a municipality. It does not appear that Elm street was located in any addition to the town and there is nothing in the record to authorize an assumption that it was such. And if it had been such we believe the evidence introduced by plaintiff was sufficient to show that the street had been accepted by the town. The mayor’s testimony that the street had been graded by the city was sufficient under the language of the decisions, supra, to show acceptance of the street and the exercise of jurisdiction over it, and such as to render defendant liable for failure to keep it in repair. Instruction numbered one and two given for plaintiff are criticised on the ground that they submit to the jury the legal proposition upon which the plaintiff’s right to recover hinged. That is to say that the “question really submitted . . . was whether this traveled way was a public street of the city for the maintenance of which- it was in duty bound without telling the jury what would constitute such street and such duty.” [19] As there was no controversy but the street was a public street over which the town had assumed jurisdiction and control it was not necessary to tell the jury what was necessary to constitute a public street. If Elm street was within the limits of the original town as we are justified in assuming it was, it was the duty of the town to keep it in a reasonably safe condition, provided it was in general use by the traveling public. Finding no error in the record the cause is affirmed. All concur.