Hebenheimer v. City of St. Louis
| Decision Date | 01 December 1916 |
| Parties | AMELIA HEBENHEIMER v. CITY OF ST. LOUIS, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.
Affirmed.
Charles H. Daues, Truman P. Young and Everett Paul Griffin for appellant.
(1) Where a fraud or deceit has been practiced by one party on the other, or the court is satisfied that perjury or mistake has been committed by a witness, and is also satisfied that an improper verdict or finding was occasioned by any such matters, and that the party has a just cause of action or of defense, it shall, on motion of the proper party, grant a new trial. R. S. 1909, sec. 2022; Standard Co. v. White Co., 122 Mo. 258; Lovell v. Davis, 52 Mo.App 342; Hurley v. Connally, 186 Mo. 225; Parker v Britton, 133 Mo.App. 270; Ridge v. Johnson, 129 Mo.App. 541. (2) When the testimony given by the plaintiff is unbelievable, the court may sweep said testimony aside. Fagg v. Railroad, 185 Mo.App. 79; Stotler v. Railroad, 204 Mo. 619; Walker v. Railroad, 193 Mo. 453; Huggart v. Railroad, 134 Mo. 673. (3) The construction and maintenance of a coal hole with the cover thereon is a perfectly lawful and proper use to be made of the public sidewalks. Carvin v. St. Louis, 151 Mo. 334; 28 Cyc. 1382 (c). (4) The tenant was liable for negligence in the maintenance of the coal-hole cover in question, if the evidence of the plaintiff is true. Kilroy v. Wackman, 242 Mo. 74; 4 Dillon, Mun. Corps. (5 Ed.), sec. 1725. (5) The city is not liable for a defective condition in a sidewalk of which it did not have actual knowledge, or which had not existed for such a length of time that the city, by the use of ordinary care and diligence, would have discovered same in time to have repaired the defect and rendered it safe prior to the date of the accident. Carvin v. St. Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 317; Reedy v. Brewing Assn, 161 Mo. 523; Kaiser v. St. Louis, 185 Mo. 366; Ryan v. Kansas City, 232 Mo. 471. (6) There was no evidence that the city ever had actual notice, nor is there any evidence of constructive notice. (7) Notice to a police officer is not notice to the city, unless he was the officer walking the beat of the premises in which the alleged defective place existed. Carrington v. St. Louis, 89 Mo. 208; Willis v. St. Joseph, 184 Mo.App. 428; 6 McQuillin on Mun. Corps., sec. 2810. (8) If there was any defect in the condition of the coal hole in question in this case, it was a latent defect and the city is not liable. Baustian v. Young, 152 Mo. 317; Carvin v. St. Louis, 151 Mo. 334; Franke v. St. Louis, 110 Mo. 516; Buckley v. Kansas City, 156 Mo. 16. (9) In this case the court should not have permitted plaintiff's case to go to the jury because plaintiff was guilty of contributory negligence, as there was nothing to obstruct her view; it was high noon -- broad daylight -- and she did not look to see where she was going, when looking would have prevented the accident, if the coal hole cover was not in place. Ryan v. Kansas City, 232 Mo. 471; Wheat v. St. Louis, 179 Mo. 572; Coffey v. Carthage, 186 Mo. 573. (10) Evidence of other accidents from the same cause is not admissible in a suit against the city for damages on account of an alleged defect in a sidewalk. Goble v. Kansas City, 148 Mo. 475; King v. St. Louis, 250 Mo. 501; Smart v. Kansas City, 91 Mo.App. 594. (11) Instruction number one, the main instruction, is erroneous, in that it required a higher degree of care on the part of the city than the law requires. Horan v. Independence, 176 S.W. 1061; Ryan v. Kansas City, 232 Mo. 471; Barnes v. St. Joseph, 151 Mo.App. 528; St. Louis v. Kansas City, 110 Mo.App. 653. (12) Instruction number 19 is clearly erroneous as it permitted the plaintiff to recover for "the diminished ability of plaintiff to work or labor." This is an element of damage which her husband was entitled to recover for, as the evidence showed that at the time of the injury to her, her duties were purely of a household character. The inability of plaintiff to perform her household duties in the future was a loss to him and not to her. Wallis v. Westport, 82 Mo.App. 523.
H. A. Loevy for respondent.
(1) This point, that Kuehn committed perjury in testifying that he told Officer Regan about the dangerous cover and that therefore the verdict should be vacated, cannot be considered. (a) Because it is not made in the motion for new trial. (b) Such a point is addressed peculiarly to the discretion of the trial judge who saw and heard the accused witness testify. (2) If landlord leases with dangerous coal hole in sidewalk and tenant permits it to remain, both landlord and city are liable. Marion v. Kansas City, 74 Mo.App. 138; Fehlhauer v. St. Louis, 178 Mo. 647-8. All three are liable for a nuisance irrespective of negligence. Memphis v. Miller, 78 Mo.App. 67. Landlord is liable with city, not because he is the owner, but for his negligent omission to perform duty imposed by law (citing Benjamin, 133 Mo. Mo. 274, coalhole case). Perrigo v. St. Louis, 185 Mo. 274; Mancuso v. K. C., 74 Mo.App. 138; Reeds v. St. Louis, 161 Mo. 533-4. City cannot shift liability to either landlord or tenant. Benton v. City, 217 Mo. 709. City is liable even if ignorant of defect. Shippey v. Kansas City, 254 Mo. 21. The city should not allow such a loose cover to be in the sidewalk at all. Campbell v. Chillicothe, 239 Mo. 461.
Respondent fell into a coal hole in a sidewalk in St. Louis, and this appeal is from a judgment for $ 8388 she recovered against the city for damages for injuries she suffered.
There was evidence tending to show that while respondent was walking in front of 1006 Olive street, one of the principal streets of the city of St. Louis, she stepped upon the cover of a coal hole; that the cover tilted and she fell into the opening, sustaining serious injuries; that the sidewalk was granitoid except a block of stone about three and one-half feet square, through which the coal hole had been cut; that the cover of the coal hole was a round iron plate; that an opening in the stone was cut down about the thickness of this plate and then a "shoulder" of stone was left upon which it was intended this plate should rest; that the diameter of the plate was about an inch less than the diameter of the opening in the stone above the shoulder upon which the plate or cover rested, and that the shoulder itself was about an inch across; that for several years before respondent was injured, and as far back as respondent's witnesses had observed the place, the coal-hole cover had been seen to slip and tilt and slide out of place when stepped upon; that there was a hole in the center of the plate and an iron pin therein, but there was no fastening or appliance designed to hold the plate or cover in place; that one police officer on the beat had been notified directly of the condition of the coal hole; that other officers on the beat had examined the coal hole a number of times; some of these, testifying for appellant, said they examined the coal hole but found it secure. There was also evidence that the pin through the center of the cover was placed therein for the purpose of holding the cover in place by means of a wooden bar through which the pin was designed to run and which was held against the lower side of the stone by a nut upon the lower end of the pin. There was evidence pro and con upon the question whether any such bar had been in use during several years prior to the time respondent was injured. Numerous errors are assigned.
I. It is urged the record indicates Kuehn testified falsely concerning the notice he said he gave Officer Reagan of the defective condition of the coal-hole cover, and then it is insisted this should work a reversal of the judgment and a remandment of the cause. The motion for new trial makes no complaint of this sort. Kuehn was testifying some ten years after the injury to respondent occurred and previously had given substantially the same testimony several times. There was ample opportunity to investigate the truth of his story. There was nothing inherently improbable in it. The fact that the officer he claimed to have notified died prior to the first trial and the fact that Kuehn's brother, tenant of the property, was not joined as a defendant, do not necessarily render Kuehn's testimony untrue. His credibility was for the jury and the trial court, and doubtless the argument now made to us was pressed upon their attention with a view to destroying the weight of his testimony before the jury. This was its proper function. With the witness before them neither trial judge nor jury seem to have detected perjury.
II. It is insisted the testimony of plaintiff and her witnesses is unworthy of belief and that the judgment should be reversed for this reason. In support of this contention the case of Fagg v. Railroad, 185 Mo.App. 79, is cited. This was a case in which the court applied the rule that one who is injured on a railroad crossing and testifies he kept a lookout for approaching trains will be held guilty of contributory negligence, despite his testimony, when the situation was such that he must have seen the train which injured him if he looked at all. That rule is not applicable here. The fact that many persons passed over the coal hole without injury and that several testified positively the cover was not defective and the testimony of plaintiff and her witnesses as to the defective condition thereof simply made a question of fact for solution by the jury.
III. Another contention is that the defect was a latent one and that the city had no actual notice and that the exercise of ordinary care would not have brought it notice...
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