Stewart v. Sheidley et al.
| Decision Date | 04 March 1929 |
| Docket Number | No. 16478.,16478. |
| Citation | 16 S.W.2d 607 |
| Parties | ELMAR STEWART, APPELLANT, v. HUBERT O. SHEIDLEY ET AL. AND KANSAS CITY, MISSOURI, RESPONDENTS.<SMALL><SUP>*</SUP></SMALL> |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County. — Hon. Allen C. Southern, Judge.
AFFIRMED IN PART, REVERSED IN PART AND CAUSE REMANDED.
Ingraham D. Hook for appellant.
Mosman, Rogers & Buzard for defendant, Sheidley.
John T. Barker, Milton J. Oldham and Arthur R. Wolfe for City.
This is an action for damages for personal injuries sustained by the appellant Elmer Stewart from a fall caused by a defect in the sidewalk on the south side of 9th Street between Main and Walnut Streets, in Kansas City, Missouri, adjoining defendant Sheidley's office building. The petition alleges the negligence of the defendants in permitting the defective sidewalk. The alleged liability of defendant Sheidley is because of his co-ownership of the building. Other co-owners were named in the petition, but were not served with summons, and are not in the case. Kansas City filed a general denial and a plea of contributory negligence. Defendant Sheidley filed a general denial. At the close of plaintiff's case both defendants asked peremptory instructions in the nature of a demurrer to plaintiff's evidence, which the court sustained; whereupon plaintiff took an involuntary nonsuit, with leave to move to set the same aside. Later, upon the court's refusal to set aside the involuntary nonsuit, plaintiff appealed to this court.
Plaintiff, fifty-seven years of age, a mail carrier in Kansas City since 1890, left the post office, at 9th Street and Grand Avenue, on his regular delivery, about 7:30 A.M. on December 2, 1924, and was walking down the south side of 9th Street toward the beginning of his regular route on Wyandotte Street. The testimony shows that the established grade of this street, from Walnut to Main, is about thirteen and twenty-five hundredths per cent down grade. From the alley in the middle of the block down to Main Street the walk extends alongside of the Sheidley building. For about two feet outward from the side of the building the sidewalk space is covered in part by iron gratings, and in part is open to furnish light to the basement of the building. These open spaces, of the same width from the building as the iron gratings, are protected by iron railings set in iron posts. From the line of these railings and iron gratings outward to the curb the sidewalk is composed of stone slabs approximately ten feet north and south by four feet east and west, and about five inches thick. Because of said railings all pedestrian traffic is on the stone walk and not on the iron gratings. These stone slabs have constituted the sidewalk there for many years, in the course of which they have become much worn, particularly toward the center of the walk. The testimony shows that the space underneath the sidewalk is used in connection with the Sheidley building as a boiler room and for coal bins. The stone slabs which compose the sidewalk rest upon steel I-beams, which are connected with the foundation of the building and with the wall under the curb line.
Plaintiff testified that he was carrying his mail sack, weighing about forty-five pounds, in front of him, with the strap over his left shoulder, with his left arm around the sack, and the right arm holding it to help carry the load, about the middle of the sack, a little lower than his left arm. He testified that when about eighty feet from the bottom of the hill he tripped and fell face forward down hill, striking his left knee on one of the iron posts referred to, wrenching his shoulder, back and neck, and badly bruising his nose. Upon examining the sidewalk to see what had tripped him he found that one of the slabs was cracked diagonally, so that a triangular piece in the southwest corner thereof, about twelve inches wide, along the south edge, and eighteen inches wide along the west edge, with the crack as the hypotenuse, had become separated from the rest of the slab. The testimony showed that this triangular piece stood about seven-sixteenths of an inch higher than the main slab from which it had become separated, and that this main slab was so badly worn toward the center, as above mentioned, that there was an actual difference in the level between the lowest part of the depression and the top of the triangular piece of some two or three inches.
Plaintiff testified that he had been on this particular mail route about four years, and in his five daily deliveries usually passed up and down this street ten times a day, excepting in bad weather. He testified that he knew the walk on the whole hillside was in bad condition, with numbers of cracks and depressions, and that he had seen this particular crack many times along with the others, but denied that he had ever specially identified it as distinct from the others. He testified that on the morning in question, as he was walking with his mail sack in front of him, he could see the ground about twenty feet ahead, that he saw the general condition of the sidewalk, as he walked down there, and that he saw this crack along with the others; that he walked on what he thought was the safest part of the walk.
The evidence further shows that after he fell he continued his delivery, which was on a down-town route, and then returned to the post office, where he reported the accident and then went home. A doctor was called, and later his leg was put in a plaster cast for several weeks. He returned to work on part time about April 1st, and on full time about May 1, 1925.
The peremptory instruction in the nature of a demurrer which the trial court gave for defendant Kansas City was as follows:
"You are instructed at the close of plaintiff's case that, under the pleadings and the evidence, your verdict must be for defendant Kansas City."
The demurrer for the defendant Sheidley was in similar language.
These demurrers, which the court sustained, do not indicate whether they are based on the contention that the evidence on behalf of plaintiff failed to show facts sufficient to constitute a cause of action in themselves, or whether it was that plaintiff's evidence showed that he was guilty of such contributory negligence as would bar a recovery.
The rule is that on a demurrer to the evidence all the testimony must be considered most favorably to the plaintiff. [Rose v. St. Louis-San Francisco Railway Co., 315 Mo. 1181, 289 S.W. 913; West v. St. Louis-San Francisco Railway Co. (Mo.), 289 S.W 965; Jones v. Gillioz (Mo. App.), 9 S.W. (2d) 89.]
As to defendant Kansas City the evidence shows negligence. The defect in the sidewalk was shown to have existed for a long time. The crack in the slab, which permitted an unevenness of not less than seven-sixteenths of an inch, was shown to have been an old one; and the dangerous condition to which this unevenness gave rise was accentuated by the depressions in the stone slabs at that point, arising from many years of wear. The steep grade in the sidewalk at that point added to the natural hazard of traffic, and it could not be said as a matter of law that the maintenance of this condition for an unreasonable length of time did not constitute such negligence on the part of the city as would make it liable for any injuries of which it was the proximate cause, in the absence of contributory negligence on the part of the plaintiff.
The only defense which Kansas City offers in this court to its alleged negligence in this case is that the defects were too trivial to be actionable. It cites the case of Baker v. City of Detroit, 132 N.W. 462, holding that an inequality of two inches and less in a sidewalk does not render it not reasonably safe for public travel; and the case of Gastel v. City of New York, 86 N.E. 833, holding that a sidewalk in which the difference in level for its entire width was about one inch, and upon which there was no edge upon which the foot might catch, did not establish the city's negligence. These cases, from other States, would not be controlling in this State, as a matter of law, even under the same state of facts. However, they do not in any event apply to the facts in this case, in which the defect existed on a steep hillside, with a distinct protuberant edge of seven-sixteenths of an inch surmounting a further irregular depression in the walk. Whether this was negligence on the part of the city was properly a question for the jury.
The question then arises whether the evidence on behalf of plaintiff, to which the demurrer was filed, showed such contributory negligence on the part of plaintiff as would bar recovery as a matter of law. The act of plaintiff which defendants allege as such contributory negligence consisted in his walking down the hillside in question when he knew that the sidewalk was defective, having traveled on same several times a day for four years and having seen this particular crack in the walk along with the others. Mere knowledge on the part of plaintiff that the sidewalk was defective would not make his use thereof negligence as a matter of law, unless he knew or ought to have known that it was dangerous. This distinction has been repeatedly recognized by the courts. In Devlin v. City of St. Louis, 252 Mo. 203, 158 S.W. 346, the court said:
To the same effect see Heberling v. City of Warrensburg, 204 Mo. 604, 103 S.W. 36, in which the court said:
"If he knows of a defect and it is not so obviously...
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