Coffey v. City of Carthage

• Decision Date: 21 February 1905
• Parties: COFFEY, Appellant, v. CITY OF CARTHAGE
• Court: Missouri Supreme Court

85 S.W. 532

186 Mo. 573

COFFEY, Appellant, v. CITY OF CARTHAGE

Supreme Court of Missouri, Second Division

February 21, 1905

Appeal from Jasper Circuit Court. -- Hon. Hugh Dabbs, Judge.

Reversed and remanded.

H. L Shannon and Cole & Burnett for appellant.

(1) The court erred in telling the jury in instruction 12 that if plaintiff was not walking on the stone sidewalk when injured but was walking on the grass plot between the sidewalk and street, and in doing so was injured, the defendant would not be liable. Fockler v. Kansas City, 94 Mo.App. 464; Walker v. Kansas City, 99 Mo. 650; Roe v. Kansas City, 100 Mo. 192; Goins v. Moberly, 127 Mo 116; Kassman v. St. Louis, 153 Mo. 293; Gerdes v. Iron & Foundry Co., 124 Mo. 357. (2) The court erred in telling the jury in instruction 9 that if, at the time of her injury, plaintiff was carelessly and negligently walking along the edge of the stone walk mentioned in the evidence, and failing to use ordinary care in paying attention to where she was walking, and by reason of such carelessness and negligence she stepped into the hole and was injured, then the jury should find a verdict for the defendant. Barr v. Kansas City, 105 Mo. 559; Sawyer v. Railroad, 37 Mo. 263; Anderson v. Kinchloe, 30 Mo. 525; Finn v. St. L. Pub. Schools, 39 Mo. 67; Chappell v. Allen, 38 Mo. 222; Jones v. Jones, 57 Mo. 142; Tibbe v. Kamp, 154 Mo. 583; State v. Hibler, 149 Mo. 478; State v. Rutherford, 152 Mo. 124. (3) The court erred in telling the jury in instruction 8 that the mere fact that plaintiff was injured by a fall upon defendant's sidewalk occasioned by stepping in a hole is no evidence of itself that defendant was negligent in keeping its sidewalks in good repair, or in a reasonably safe condition. Fisher v. Central Lead Co., 156 Mo. 495; Thompson v. Railroad, 93 Mo.App. 554; Hopper v. Southern Hotel Co., 142 Mo. 378. (4) The court erred in submitting the question of plaintiff's contributory negligence to the jury. Williams v. Hannibal, 94 Mo.App. 556; Goins v. Moberly, 127 Mo. 120; Kassman v. St. Louis, 153 Mo. 300.

J. D. Harris and H. J. Green for respondent.

(1) Under the pleadings and evidence made by the parties, appellant ought not to be heard to complain of instruction 12. Doughterty v. Horsehead, 159 N.Y. 154; Ring v. Cohoes, 77 N.Y. 83; Dubois v. Kingston, 103 N.Y. 219; Winsten v. Terre Haute, 147 Ind. 556; Macomber v. Tauton, 100 Mass. 225; Wellington v. Geogon, 31 Kan. 99; B. & J. v. Long, 56 Ill. 458; Clark v. Dasso, 34 Mich. 86; Everett v. C. & B., 46 Iowa 66; Atlanta v. Halladay, 96 Ga. 546; Winter v. Peterson, 126 Ind. 436; Johnson v. Philadelphia, 139 Pa. St. 646; Raymond v. Lowell, 6 Cush. 524; Teisler v. Norwitch, 73 Conn. 199; Cincinnati v. Fleisher, 63 Ohio St. 229; Horner v. Philadelphia, 194 Pa. St. 524; Harrington v. Brooklyn, 67 Hun 85; s. c., affirmed, 143 N.Y. 661; Platt v. Mayor, 8 Misc. 409. These cases clearly announce the equitable and just doctrine that a city ought not to be liable for injuries upon these grass plots that are not designed for sidewalks. (2) Instruction 9 under the evidence in this case was proper. Jackson v. Kansas City, 79 S.W. 1174; Wheat v. St. Louis, 179 Mo. 572; Churchman v. Kansas City, 44 Mo.App. 668; Phelps v. Salisbury, 161 Mo. 15. (3) Instruction 8 is in line with the following cases: Young v. Kansas City, 45 Mo.App. 602; Carvin v. St. Louis, 151 Mo. 345; Staples v. Canton, 69 Mo. 592; Buckley v. Kansas City, 156 Mo. 16; Baustian v. Young, 115 Mo. 317. (4) The rule in this State is well settled that when plaintiff's own testimony shows she was not using ordinary care and was guilty of contributory negligence, she can not recover even if defendant was negligent; where plaintiff's own testimony shows that she is guilty of contributory negligence she can not recover; failure to look where she was going when she knew the sidewalk, is negligence as a matter of law, and the court should have so declared. Cohn v. Kansas City, 108 Mo. 387; Hudson v. Railroad, 101 Mo. 30; Hesselbach v. St. Louis, 179 Mo. 505; Glasscock v. Swofford Bro. D. Co., 80 S.W. 364; Jackson v. Kansas City, 79 S.W. 1174; Wheat v. St. Louis, 179 Mo. 572; Christian v. Ins. Co., 143 Mo. 460; Lowsden v. Kessler, 76 Mo.App. 581; Plummer v. Milan, 79 Mo.App. 439; Roberts v. Tel. Co., 166 Mo. 370; Sindlinger v. Kansas City, 126 Mo. 315; Hogan v. Railroad, 150 Mo. 55.

OPINION

FOX, J.

This is an action for personal injuries wherein appellant demanded the sum of five thousand dollars from respondent city of Carthage, a city of the third class, by reason of a defective sidewalk on one of respondent's streets.

The negligence complained of is thus stated in the petition:

"That McGregor street in said city, with its sidewalks, is and was for more than ten years prior to the injuries herein complained of, a public street of said city, accepted by said city as such, and used during said time by the inhabitants of said city as a public street and thoroughfare for the passage of vehicles, and passengers on foot; that on the twenty-third day of January, 1901, there was on the east side of said street, between Walnut and Sycamore streets, in said city, a sawed stone sidewalk, about five or six feet in width, and that there was on said date, in the edge of said sidewalk, on the west side thereof, a hole of about six to eight inches in diameter, and about twelve inches deep, which said hole rendered said sidewalk unsafe and dangerous for persons walking thereon; that the said hole and unsafe and dangerous condition of said sidewalk existed on the said date and at the time of plaintiff's injuries hereinafter complained of, and such hole and condition of said sidewalk had so existed and remained for a long time prior to said injury, to-wit, for at least two months, and that the said defendant city had notice of the existence of said hole and of the said unsafe and dangerous condition of said sidewalk, or by the exercise of reasonable care might have known of said hole and the said unsafe and dangerous condition of said sidewalk, in time to have covered or repaired the same before the time of said injury, and had carelessly and negligently permitted said hole to be and remain in said sidewalk, and had carelessly and negligently permitted said sidewalk to be and remain in said unsafe and dangerous condition at the time of said injuries and for a long time prior thereto."

The defense to this action, as indicated by the answer filed, was:

"1st. A general denial.

"2d. Contributory negligence.

"3d. That if plaintiff was injured as she alleged in her petition it was at a place not designated for foot passengers and who are not expected to travel on the same or designed for such use."

The testimony tended to prove substantially the following state of facts, that:

"McGregor street is a public highway in the city of Carthage. By ordinance it is provided that all sidewalks on McGregor street shall be ten feet wide, with not less than six feet of brick or flagstone pavement and granite or limestone curbstones on the outside.

"Ten or twelve years before the trial of this case a sidewalk was constructed on the east side of this street in front of Rudolph Finke's residence, consisting of 'six feet of flagstone pavement,' and a 'grass plot four feet wide between the flagstone and curbstone,' the whole forming a 'smooth and even upper surface.'

"When this sidewalk was constructed a corner was removed from one of the stones at a point where a water plug was stationed. The hole in the sidewalk resulting from the removal of the corner of said stone, was at first plugged up by the insertion of a wooden boxing therein, which was covered by an iron covering.

"The testimony tends to show that this boxing had rotted out three or four years before the trial, and the dirt from the grass plot had caved in, forming a hole in the stone and dirt portion of the sidewalk combined, from five to six inches wide and from twelve to sixteen inches long, the length of the hole being horizontal with the sidewalk. This hole had existed in the sidewalk for at least a year before the injury to appellant and it had been left uncovered except that at times a loose rock was laid over it.

"On the morning of the twenty-third day of January, 1901, when the day was just breaking, appellant, while going in a southernly direction from her home to make a business call upon a Mr. Kennedy, stepped her right foot into said hole, whereby she was thrown to the ground and received the injuries complained of.

"At the time of stepping into the hole appellant was walking briskly along on the stone flagging near its outer edge, looking diagonally across the street at a man, whom she supposed was a tramp, coming from a back door and taking the same direction she was going. To avoid meeting him she checked up and was going slow, when the first thing she knew her right foot was in the hole."

Upon cross-examination, as tending to show contributory negligence, the defendant elicited from plaintiff the following testimony:

"Q. Were you in the habit of going along McGregor street? A. Yes I went along there a few times.

"Q. Along the sidewalk? A. Yes, sir.

"Q. How often had you been along there before? A. Been along a few times. Never kept any account of it at all.

"Q. You were in the habit of walking on the grass plot, weren't you? A. Well, I would walk along on the side of the stone walk at times, and then when my feet got very tired I would walk on the grass plot.

"Q. Didn't you state on both your former trials that you were in the habit of walking on the grass plot for to rest your feet? A. At times; yes, sir.

"Q. That is pretty nice sidewalk along there? A. Yes, sir.

"Q. Six feet wide? A. I don't know. I never measured it....