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
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
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
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.”
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.