Breen v. Johnson Brothers Drug Company

• Decision Date: 23 February 1923
• Citation: 248 S.W. 970,297 Mo. 176
• Parties: LOU BREEN, Appellant, v. JOHNSON BROTHERS DRUG COMPANY
• Court: Missouri Supreme Court

248 S.W. 970

297 Mo. 176

LOU BREEN, Appellant, v. JOHNSON BROTHERS DRUG COMPANY

Supreme Court of Missouri, Second Division

February 23, 1923

Appeal from St. Louis City Circuit Court. -- Hon. Benjamin J. Klene Judge.

Affirmed.

W. H Douglass for appellant.

(1) Defendant's Instruction F should not have been given, as it improperly declares the law, in this: (a) There is no such plea of contributory negligence in the answer as attempted to be hypothesized in this instruction. Heriford v. Kansas City, 220 S.W. 902; Fischel v. Coal & Mining Co., 221 S.W. 80; McElwain v. Dunham, 221 S.W 773; Schinagle v. Baughman, 228 S.W. 897; Harrington v. Dunham, 273 Mo. 428. (b) This instruction assumes that plaintiff was guilty of contributory negligence. Glaber v. Rothchild, 221 Mo. 180, 203; Coffey v. City, 186 Mo. 573, 583; Hensen v. City, 277 Mo. 443, 457. (c) This instruction is inconsistent with and contradictory to plaintiff's instruction numbered 2, and this is error. Shepard v. Transit Co., 189 Mo. 362, 373; Implement Co. v. Ritchie, 143 Mo. 612; State ex rel. v. Ellison, 195 S.W. 722. (d) It imposes the duty on plaintiff to pay particular attention to the sidewalk and thereby makes her an inspector of sidewalks. Smith v. Kansas City, 184 S.W. 82; Willis v. Kansas City Ter. Ry. Co., 199 S.W. 736; Herberling v. Warrensburg, 205 Mo. 604, 613; Perette v. Kansas City, 162 Mo. 248; McNeil v. City, 190 S.W. 327; O'Neil v. City, 239 S.W. 94. (e) This instruction directs a verdict for defendant without a finding that the fact stated "directly contributed to cause plaintiff's injury," and is therefore erroneous. Howard v. Scarrett Estate Co., 267 Mo. 398, 402; Heriford v. Kansas City Railway Co., 270 S.W. 903. (f) This instruction is nothing more than a general instruction on contributory negligence and should not have been given. Harrington v. Dunham, 273 Mo. 414, 428. (2) Plaintiff offered instruction numbered 6, which was refused by the court, and it should have been given. Dillon v. Hunt, 105 Mo. 154, 163; Bright v. Thatcher, 208 Mo.App. 301, 314; Carroll v. Railway Co., 88 Mo. 239. (3) Plaintiff offered instruction numbered 7, which was refused by the court and it should have been given. Owens v. Railroad, 95 Mo. 169, 182; Brown v. Railroad, 66 Mo. 588; Delaplane v. Kansas City, 109 Mo.App. 107, 113; Smart v. Kansas City, 208 Mo. 162, 206. (4) Wilkerson v. Sedalia, 105 S.W. 877, is a case where the injury occurred exactly like the present case.

Holland, Rutledge & Lashly for respondent.

The verdict of the jury in favor of the respondent was in favor of the right party. The lower court should have given the peremptory instruction asked by the respondent at the close of all the evidence. Where a verdict is for the right party it will be affirmed on appeal regardless of whether the issues were or were not properly submitted to the jury by the instructions of the trial court. Trainer v. Mining Co., 243 Mo. 359.

RAILEY, C. Davis and Higbee, CC., concur.

OPINION

RAILEY, C.

This action was commenced by plaintiff, Lou Breen, in the Circuit Court of the City of St. Louis, on January 19, 1921, to recover damages of the defendant, Johnson Brothers Drug Company, a Missouri corporation, for personal injuries alleged to have been sustained by her on December 14, 1920, by falling on a sidewalk at the southwest corner of Seventh and St. Charles streets, in the city aforesaid, in front of defendant's place of business, as lessee.

She alleges in her petition that while walking along the above sidewalk, a cane, which she was compelled to use in walking, went into a small hole where the glass had been broken out of the sidewalk light in front of the building occupied by defendant, which caused her to fall and sustain the injuries complained of in the petition. It is alleged that the sidewalk light aforesaid was allowed and permitted to be put in said sidewalk for the use and benefit of the building occupied by defendant, and the tenants and lessees of said building; "that the hole caused by glass in the frame work of said light which was broken out and into which plaintiff's cane went, had existed for some time prior to the time of plaintiff's fall, and so long that the defendant knew, or by the exercise of ordinary care could have known, of said defective condition of said sidewalk on account of the holes in the sidewalk light as aforesaid, and that said sidewalk, on account of the holes where the glass had been broken out of the frame work in said sidewalk light, was dangerous and was not reasonably safe for the use of pedestrians in passing along and using said sidewalk. Plaintiff further says that the injuries which she sustained in the manner aforesaid were directly caused on account of the negligence of the defendants in allowing and permitting the sidewalk to remain in a defective condition by failing to repair it where the glass had been broken out of the framework in the sidewalk light which caused the holes into which plaintiff's cane went and caused her to be injured, and which said condition the defendants knew, or by the exercise of ordinary care could have known, and negligently failed to repair." She prayed judgment for $ 15,000, etc.

The petition likewise alleges "that plaintiff, Lou Breen, served notice on the mayor of the city of St. Louis, Missouri, on the 19th day of January, 1921, and within ninety days of the date of the accident, as provided by Section 6904 of the Revised Statutes of the State of Missouri for the year 1919, setting forth that she would claim damages against the city of St. Louis on account of the injuries which she sustained as alleged on the 14th day of December, 1920, caused by falling on a sidewalk at the southwest corner of Seventh and St. Charles streets, and setting forth the manner in which she was caused to fall, and the injuries which she sustained, and that she would claim damages against the city on account of the injuries so sustained."

The amended answer, on which the case was tried, contains a general denial, and the following: "Further answering, defendant states that if on the occasion mentioned in plaintiff's petition, plaintiff fell by reason of placing her cane in a hole in the sidewalk, mentioned in her petition, such injuries were directly due to negligence on the part of plaintiff in failing to exercise ordinary care to observe her whereabouts, and in failing to exercise ordinary care thereafter to avoid placing her cane in such a manner as to cause her to lose her balance and fall."

The reply is a general denial of the new matter pleaded in said answer.

Appellant testified, in substance, that she was injured on the sidewalk described in her petition, in front of the property occupied by defendant, on December 14, 1920; that she was injured a little after three o'clock in the afternoon; that she was on the west side of Seventh Street going south, and had just crossed St. Charles Street and stepped on the sidewalk in front of defendant's premises; that her cane went down in the hole; that she was walking with the cane in her right hand; that it went down in the hole, she lost her balance, while depending on the cane for support, and fell forward full length on the sidewalk; that after she fell on the sidewalk she didn't notice anything; that the cane was still in her hand and down in the hole; that she couldn't get up, screamed and was carried into defendant's drug store, by two gentlemen; that she was taken to the City Hospital, and after being treated was taken home. She detailed her injuries, suffering and the medical treatment which she received. She testified that before the accident on December 14, 1920, she had used a cane for two or three years on the outside, but not in the house. She described her former injuries, and said she was still a cripple therefrom.

On cross-examination, plaintiff testified that, after falling, she did not look at the sidewalk where she fell; that up to within three weeks of the trial herein, no doctor had examined her leg or otherwise for treatment after she left the City Hospital. She testified her cane was a broom handle that was cut off, and a rubber put on the end of it.

Margaret Hillenkoetter testified that on December 14, 1920, she was working for defendant at its drug store above described; that she saw plaintiff, when the latter was brought into the drug store after her fall. She was shown plaintiff's Exhibit A, and said it was a fair representation of defendant's place of business. Her attention was called to certain dots or holes described on Exhibit A, as being in the sidewalk; that she noticed one of them and the photograph gives a fair representation of them; that she had noticed these holes there about two weeks before the accident.

On cross-examination she testified that she commenced work for defendant in August, 1920, and was notified on December 18, 1920, that her services were no longer needed. She admitted that Exhibit A only showed one hole marked "E," with a circle around it, while the other places thereon were dark spots. She testified that she did not go out to look at the sidewalk on December 15th, 16th, 17th, and went home on the 18th; that she did not look at the sidewalk on either December 10th, 11th, 12th or 13th, 1920.

On re-examination, she said that at the time of the accident there were holes in the sidewalk where these dots appear in Exhibit A.

Conrad Cohnheim testified, in behalf of plaintiff, that he was a photographer and took Exhibit A on December 15, 1920; that those black dots on Exhibit A, between "C" and "D" and "E," were holes in the sidewalk with the glass broken out; that he observed these holes when the picture was taken.

Wm Schmeider, inspector of buildings in St. Louis,...