Flynn v. City of Neosho , 114 Mo. 567 ( 1893 )

Buhgfss, J.

This is an action to recover damages against the defendant, a municipal corporation, for injuries sustained by the plaintiff on account of a defective sidewalk.

Plaintiff was, at the time of the injury, a comparative stranger in the city of Neosho, only having been there two or three days, and ingoing from the depot of the St. Louis & San Francisco railroad, which is located about a mile distant from the city, into the city proper, and in walking along North Spring street during the darkness of the night, and in attempting to pass over the sidewalk where it was built about from three to five feet above the level or surface of the street, without any guard rails to prevent pedestrians passing over the same from falling off, fell on the rocks below and broke his left leg just below the knee. This defect in the sidewalk was well known to the city authorities. The venue of the cause was changed to the circuit court of Jasper county.

Plaintiff recovered judgment for $1,150 and the defendant has appealed.

I. Defendant’s first contention is that the court committed error in admitting in evidence, over its objection, what purported to be a plat or survey of North Spring street, made by one L. B. Eobertson, for the reason that it had never been acknowledged or recorded and was not the official map of the county surveyor. The plat, as it is called, is not made part of the record, nor does it appear to have been offered in evidence.

It is impossible for us to determine from this record whether it was properly admitted in evidence or not, even if such was the case, as it is not-incorporated in the bill of exceptions, and as the presumption is to be indulged that the ruling of the court was correct, and as it devolves on the party who alleges error to establish it, and that has not been made to appear, we must conclude that the ruling of the court was correct.

II. The next contention is that whatever danger there was in passing over the sidewalk was voluntarily assumed by the plaintiff and that therefore he is not entitled to recover.

It is well settled law that municipal corporations are bound to keep their streets and sidewalks in a reasonably safe condition for the convenience of travel, either by day or night; in failing to do this they become liable for all resulting injuries; and this too notwithstanding the person traveling along the sidewalk on a dark night knows that a place which is dangerous is not provided with a railing, provided he falls and is injured without negligence or fault on his part. Loewer v. Sedalia, 77 Mo. 431; Maus v. Springfield, 101 Mo. 613; Lowell v. Watertown, 58 Mich. 568; Smith v. St. Joseph, 45 Mo. 449; Haniford v. City of Kansas, 103 Mo. 172.

Plaintiff’s knowledge of the dangerous condition of the sidewalk at the point where he was injured was admissible in evidence for the purpose of showing contributory negligence on his part, but this question was fairly submitted to the jury by the instructions.

III. As to the ruling of the court in not permitting the defendant to show that L. "W. White one of plaintiff’s attorneys was city attorney for defendant at the time of the accident, and while such attorney drew and procured the passage by the board of aldermen. of an ordinance in regard to the street upon which the plaintiff sustained the jury complained of, we think that it was correct beyond any question, as plaintiff’s rights could not in any way have been affected by what Mr. White did at that time. In no event could the conduct of White as an attorney under the facts as they appear from the record in this case be inquired into here.

IY. It is further contended by defendant that there is no evidence to show that it has ever been incorporated under the laws of this state as a city of the fourth class, and that this is put in issue by the answer. The defendant is sued as a corporation, summoned, appeared, filed answer and defended the suit as such; and it cannot now be heard to say that it has not been incorporated.' Besides the allegation that it was a corporation was not denied on oath as required by section 2186, Revised Statutes 1889.

In the case of Pierce v. Lutesville, 25 Mo. App. 317, the court says: "The view that the statute applies only to private corporations is not sound. The reason of the rule which prohibits the fact of the existence of a de facto corporation from being contested in a private action of this kind, and which prescribes that it can only be done in a proceeding by quo warranto by the state, applies with equal force to municipal as to private corporations’; and our supreme court, in stating and applying the rule, cites adjudications in respect of both kinds of corporations indifferently. St. Louis v. Shields, 62 Mo. 247-251, and* cases cited; Fredericktown v. Fox, 84 Mo. 59-65, and cases cited.”

Aside from this, the record amply shows that defendant was in the full exercise of its corporate power, passing ordinances in regard to the street on which the injury occurred, and in regard to all other municipal matters of which its city government had power and control.

The court, in a well written and carefully prepared ■set of instructions, presented the case fairly to the .jury, and we are unable to discover any reversible •error in the trial or in the record. Judgment affirmed.

All of this division concur.