Lindman v. Kansas City , 308 Mo. 161 ( 1925 )

This action, as against the defendant Kansas City, is based on the alleged negligence of the city in permitting the sidewalk, along the south side of Fifteenth Street adjacent to the lot owned by defendants Altman and on which they were erecting a large seven-story building, to be removed and the ground within the sidewalk space excavated, without requiring a footway to be built for the use of pedestrians on that side of the street, and in permitting the deposit of an unnecessary quantity of building material in the roadway of the street at the same place.

An ordinance of Kansas City prohibited the making of "any cuts or excavation in, through or under any street, sidewalk, alley or other public place . . . for any purpose without a permit therefor being first obtained from the superintendent of repairs." Another ordinance provided that "the person to whom such (building) permit is granted shall also be required to erect and maintain during the said occupancy (for building material) of the public streets, a way for the use of foot passengers at such time and in such manner as the said superintendent (of buildings) may direct." And a third ordinance prohibited the use of more than one-third of the roadway of a street for the piling or storing of building material. The sidewalk space above referred to was excavated without a permit therefor ever having been obtained. After the excavation had been made a building permit was issued to the defendant Carroll, who had the general contract for the construction of the building, but no direction was given him by the superintendent of buildings with reference to a footway and he did not provide one. There was some evidence in the case which tended to show that Carroll occupied slightly more than one-third of the roadway of the street with his building material. These violations of the ordinances are pointed out merely for the purpose of eliminating them from further consideration. It is settled law in this State that a municipality incurs no liability for injury resulting from a failure on its part to exercise its governmental powers in the enforcement of its ordinances.

Aside from its ordinances, however, and as an implication arising from the grant of power to it with respect to its streets, Kansas City was bound to exercise ordinary care to keep them free from obstruction and in a reasonably safe condition for the primary use for which they were designed, that of travel. Whether there was any failure on its part to perform that duty, under the showing made, is the one question in the case which challenges consideration.

"It is not every obstruction in a street or highway that constitutes a nuisance per se, nor is every obstruction, irrespective of its character or purpose, illegal, although not sanctioned by express legislation or municipal authority. On the contrary, the right of the public to the free and unobstructed use of a street or way is subject to reasonable and necessary limitations, and to such incidental, temporary, or partial obstruction as manifest necessity may require." [13 R.C.L. 210.] Such obstructions are not invasions of the right of the public to the use of the highway or street, but are rather qualifications of or limitations upon it. [Clark v. Fry, 8 Ohio St. 358.] The right to maintain them is based upon necessity. That necessity, however, need not be absolute, but only reasonable. [Tolman v. Chicago, 240 Ill. 268.] "Subject to the limitations of necessity, reasonableness, and the public right, an abutting owner has the right temporarily to deposit in the street in front of his premises building materials required in the improvement of his property, even though the public using the street may to same extent be incommoded thereby." [13 R.C.L. 219; Hesselbach v. St. Louis, 179 Mo. 505, 523.]

The building being erected by the Altmans to front on Fifteenth Street covered their entire lot. When Carroll, the general contractor, came on the ground to begin construction, the excavation, including that of the sidewalk space in front, had been completed and barriers erected to prevent persons using the street from falling into the opening. Carroll's first work was to put in concrete retaining walls and footings for piers. He placed a concrete mixer and a small tool house in the street near the curb, and caused sand, gravel and cement to be deposited in the roadway. There was no other place in which to deposit it. He had it delivered daily in sufficient quantities to keep his force of men engaged in the concrete work employed. The work proceeded uninterruptedly from the time it was commenced until after the happening of the accident which caused plaintiff's injuries. At that time there was no building material in the street other than the sand, gravel and cement, and only enough of that to run the workmen an hour. The portion of the street occupied by the building material was about ninety feet in length, Altmans' frontage, and twenty-seven feet in width. It was withdrawn from public use by barricades upon which red lights were displayed at night. There remained for the use of the public a roadway approximately fifty feet in width and a sidewalk twelve feet wide on the other (north) side of the street. It is not pretended that this roadway and sidewalk were not amply sufficient to accommodate the travel which customarily passed over Fifteenth Street at this point. Pedestrians who had occasion to walk along the south side of the street were of course compelled to cross over to the north side in order to obtain access to a sidewalk, but the public suffered no other inconvenience of any consequence.

The permitting of the exclusion of the public from the use of the portion of the street above described is the only negligence with which Kansas City is charged. There are many situations, however, which will justify a municipality in temporarily withdrawing all or a portion of a street from public use. It may be done for the purpose of repairing the street (Herbert v. County of Rockland, 64 Misc. (N.Y.) 353; 13 R.C.L. 223); or to permit adjacent owners to make improvments (Stephens v. Macon, 83 Mo. 345); or even for the purpose of exhibitions or public displays (3 Dillon on Municipal Corporation (5 Ed.) sec. 1174). It seems entirely clear therefore that Kansas City, under the circumstances disclosed by the record, could have expressly authorized the closing up of the portion of the street that was barricaded, while the building was in the process of construction, provided the work proceeded with expedition; and consequently it did not incur any liability in permitting it to be done.

For the reasons herein set forth I am unable to concur in the opinion which holds that the judgment as to the defendant Kansas City should be affirmed. Graves, C.J., and David E. Blair,J., concur in these views.