Curran v. City of St. Joseph

OPINION. BOND, J. (After stating the facts as above.) — While the mere act of the dedication of a street and approval thereof, by a municipality, does not, without more, impose upon it the duties as to maintenance and repair which are cast upon a city by law whenever it appropriates a street to the use of the public, yet these obligations do arise the instant a city, with or without such formalities, devotes a highway to the uses of the public by recognizing it as open for travel, or invites the public to use it as a street. And such acts on its part may be shown either by direct or circumstantial evidence. [1 Elliott on Roads and Streets (3 Ed.), secs. 167, 168, 170; Benton v. City of St. Louis, 217 Mo. l. c. 703, and cases cited; Ely v. St. Louis, 181 Mo. l. c. 729; Drimmel v. Kansas City, 180 Mo. App. l. c. 351.] In the case at bar, the testimony for plaintiff tended to show that prior to her injuries, Harvard street had been dedicated to the city of St. Joseph and the city authorities thereafter had caused rolling machines to be run over the roadway part of said street extending on both sides of the residence on the south side of said street, where she resided at the time of the accident; that there were telephone poles and electric light poles on each side of the street, and an electric light suspended across the street west of the house in which plaintiff lived; that the sidewalk space on the north side of the street had been planked over by the property holders who resided there; that the sidewalk space on the south side of the street, where the plaintiff lived, was marked by a pathway in front of her house [660] and two other adjoining houses which was covered with cinders. While there was no evidence that the city improved either of the sidewalk spaces in question, yet there was evidence tending to show that the sidewalk spaces on both sides of the street were used not only by the residents but by the public generally, including children on their way to school, and persons making deliveries to the houses situated there. The evidence further tended to show that plaintiff was injured about sis or seven o’clock on the evening of December 17, 1907. She had crossed the street to make some inquiries about the time a Burlington train would go to Omaha, Nebraska. After completing the errand she returned, and after having* crossed the street and mounted the cinder path she fell into an oblique wash or gulley running across-the cinder path out in the street, which was about eighteen inches wide and a foot deep, and sustained a fracture of her thigh; there was evidence tending to show that notice of this hole in the sidewalk and street had been given to the city authorities prior to the accident, and they had promised to mend the same. These and other circumstances fully set forth in the record in this case, afforded the basis of an admissible inference that the city after its acceptance of the dedication of the street had instructed its officers to appropriate it as a public highway by the constructive work done there,on and had permitted the residents on both sides of the street and the public generally to make use of the sidewalk spaces for the purpose of travel and ingress and egress to the houses bordering the sidewalks. The dedication plat shows that the street was laid off to a width of fifty feet, which was marked by the building lines enclosing houses on both sides. It follows under the rule above stated that the learned trial court erred in sustaining a demurrer to the case made on behalf of plaintiff and directing a ver [661] diet for the defendant. The judgment herein is therefore reversed and the cause remanded, with directions to proceed in a maimer not inconsistent with this opinion. All concur.