Anton v. St. Louis Public Service Co.
| Decision Date | 17 May 1934 |
| Docket Number | 31850 |
| Citation | 71 S.W.2d 702,335 Mo. 188 |
| Parties | Philip G. Anton v. St. Louis Public Service Company, a Corporation, Appellant |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis; Hon. Wm. H Killoren, Judge.
Reversed.
T E. Francis, B. G. Carpenter and Allen, Moser & Marsalek for appellant.
(1) The trial court erred in refusing to peremptorily direct a verdict for the defendant. (a) The evidence was not such as to warrant any legitimate inference that the metal signpost over which plaintiff tripped was the property of defendant or that defendant erected it between the old sidewalk and the curb; but, in the view most favorable to plaintiff, the evidence left these matters in the realm of pure speculation and conjecture. Kane v. Railroad, 251 Mo. 30; Coble v. Ry. Co., 38 S.W.2d 1036; Hamilton v Railroad, 318 Mo. 123; Swearingen v. Railroad, 221 Mo. 644; Layton v. Chinberg, 282 S.W. 436; State ex rel. Pub. Utilities Co. v. Cox, 298 Mo. 427; State ex rel. Macon v. Trimble, 12 S.W.2d 727; 22 C. J., p. 84, sec. 27. (b) And it would not have been negligence for defendant to maintain a sign of this type at this place, in the "cinder plot" between the old sidewalk and the curb, firmly imbedded in conerete. Clinkenbeard v. St. Joseph, 10 S.W.2d 54, 61 A. L. R. 242; Price v. Travis, 140 S.E. 644, 56 A. L. R. 209; City of Norfolk v. Travis, 140 S.E. 641, 56 A. L. R. 214; Oliver v. Denver, 13 Colo.App. 345, 57 P. 729. (c) And no matter who owned this signpost or originally erected it at said place, since there is no evidence that defendant caused it to be taken from such fixed position and put upon the public sidewalk -- but this appearing to have been done by those reconstructing and widening the street -- and there is no evidence that defendant, at any time prior to the accident, had actual knowledge that it had been so placed there, defendant could not be held liable for injuries sustained by one using the public sidewalk and stumbling over such obstruction thereon. Price v. Travis, 140 S.E. 644, 56 A. L. R. 209; McMahon v. Jos. Greenspon Sons Iron & Steel Co., 267 S.W. 86. (d) An abutting property owner is not liable for defects or obstructions in the public sidewalk of a municipality along his property, in the absence of proof of some wrongful act on his part creating such dangerous condition. It is the duty of the city, and not of the abutting property owner, to keep its streets and sidewalks in reasonably safe condition for travel. Callaway v. Newman Merc. Co., 12 S.W.2d 491. And being under no duty to keep the public sidewalk free from obstructions, defendant could not be held liable on the theory of constructive notice to it of the presence of this obstruction. Price v. Travis, 56 A. L. R. 209; McMahon v. Iron & Steel Co., 267 S.W. 86. (2) Under the circumstances, the relation of passenger and carrier did not continue to exist during the time that the plaintiff was using the public streets and sidewalks, voluntarily choosing his own route in going to the bus upon which the "transfer" entitled him to further passage. Virginia Ry. & Power Co. v. Dressler, 132 Va. 342, 111 S.E. 243, 22 A. L. R. 301; Niles v. Railroad Co., 225 Mass. 570, 114 N.E. 730; Keator v. Scranton Traction Co., 191 Pa. 102, 43 A. 86, 44 L. R. A. 546; Wilson v. Railroad Co., 167 Mich. 107, 132 N.W. 768; Finseth v. Railroad Co., 32 Ore. 1, 51 P. 384, 39 L. R. A. 517; Lacks v. Wells, 329 Mo. 327; Virginia Ry. & Power Co. v. Dressler, 132 Va. 342, 111 S.E. 243, 22 A. L. R. 301; Niles v. Railroad Co., 225 Mass. 570, 114 N.E. 730; Keator v. Scranton Traction Co., 191 Pa. 102, 43 A. 86, 44 L. R. A. 546; Wilson v. Railroad Co., 167 Mich. 107, 132 N.W. 768. (a) A carrier cannot be held liable to one injured by defects or obstructions in a public street or sidewalk while making such a "walking transfer," where the carrier has no means or opportunity to exercise any degree of care to prevent the accident. Authorities cited under Points 1 and 2.
In deliberately choosing to go diagonally across DeBaliviere Avenue, instead of using the clear, safe cross-walk to reach the west side thereof, when plaintiff saw and knew that the street was torn up and under construction, proximately resulting in his falling over an obstruction at the edge of the sidewalk at a point thirty or forty feet south of Delmar, plaintiff was guilty of contributory negligence as a matter of law, precluding a recovery on any theory. Cohn v. Kansas City, 108 Mo. 394; Waldman v. Skrainka Const. Co., 289 Mo. 622; Welch v. McGowan, 262 Mo. 719; Craine v. Met. St. Ry. Co., 246 Mo. 395; Ryan v. Kansas City, 232 Mo. 471; Wheat v. St. Louis, 179 Mo. 572; Scheffer v. Schmidt, 324 Mo. 1051. (3) It was error to submit the case to the jury on an instruction alone on the measure of damages without any instruction as to what the issues in the case were, or upon what theory, if any, the jury could lawfully return a verdict for the plaintiff, or as to what facts were required to be found to warrant a verdict on any theory. Under the circumstances of the case, this was tantamount to misdirection, and constituted reversible error. Freeman v. Berberich, 60 S.W.2d 396; Christopher v. Railroad Co., 55 S.W.2d 452; Young v. Wheelock, 64 S.W.2d 950.
Neuhoff & Millar for respondent.
If plaintiff's evidence tended to support any possible theory entitling him to recover under the pleadings he made a submissible case. Christiansen v. St. Louis Pub. Serv. Co., 62 S.W.2d 830. And in determining the sufficiency of the testimony in ruling on an instruction in the nature of a demurrer to the evidence the testimony should be considered in the light most favorable to plaintiff, and all reasonable inferences to be deduced therefrom in plaintiff's favor should be considered. Smith v. Railroad Co., 62 S.W.2d 761; Morton v. Railroad Co., 323 Mo. 929, 20 S.W.2d 34; Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84; Nelson v. Heine Boiler Co., 323 Mo. 826, 20 S.W.2d 906. Case was submissible under pleadings and evidence. Plaintiff's evidence tended to show that the place where he was injured was a "proper place" for him to await defendant's bus. Under defendant's own theory of the law applicable in determining whether or not plaintiff was a passenger, this evidence made a submissible issue as to plaintiff's status. Virginia Ry. & Power Co. v. Dressler, 132 Va. 342, 22 A. L. R. 301, 111 S.E. 243; Watts v. Fleming, 221 Mo.App. 1123, 298 S.W. 107. And plaintiff having adduced testimony tending to show that defendant negligently permitted said place to remain in an unsafe condition resulting in plaintiff's injury, the trial court did not err in refusing to direct a verdict for defendant. Brooks v. Union Depot Bridge & Term. Co., 215 Mo.App. 643, 258 S.W. 724; Haselton v. St. Ry. Co., 71 N.H. 589, 53 A. 1016; Mayhew v. Elec. Ry. Co., 200 Ky. 105, 254 S.W. 202; Tobin v. Seattle, 127 Wash. 664, 221 P. 583; Thomas v. Ry. Co., 293 S.W. 1051. The relationship of passenger and carrier did exist at time and place of plaintiff's injury. But even if it did not, there being evidence tending to show that plaintiff was at least an "intending passenger" and that defendant negligently failed to exercise the care for his protection required of it under the circumstances the case was properly submitted to the jury. Laurent v. United Rys. Co., 191 S.W. 992; Chunn v. Ry. Co., 207 U.S. 302, 52 L.Ed. 219, 28 S.Ct. 63; Mangan v. City Ry. Co., 200 Iowa 579, 203 N.W. 705, 41 A. L. R. 368. Moreover, defendant having employed for its own purposes that part of the public sidewalk where plaintiff fell and was injured, was under a duty to plaintiff, as a member of the general public, to exercise due care to keep said place free from dangerous obstructions. Hoffman v. Western Union Tel. Co., 43 S.W.2d 902; Cool v. Rohrbach, 21 S.W.2d 919; Knorr v. Wells, 270 S.W. 391; Mangan v. Ry. Co., 200 Iowa 579, 203 N.W. 705, 41 A. L. R. 368.
Cooley, C. Westhues and Fitzsimmons, CC., concur.
OPINIONSuit for damages for personal injuries sustained by plaintiff by falling over a signpost lying on the sidewalk on the west side of DeBaliviere Avenue in St. Louis on the evening of August 21, 1928. Plaintiff recovered judgment for $ 10,500, from which defendant appealed. Defendant operated a passenger transportation system in which it used street cars and busses. Plaintiff boarded one of the defendant's street cars at a point east of DeBaliviere Avenue for the purpose of going, via said car and one of defendant's busses, to the Municipal Theater in Forest Park. He paid one fare for the entire trip, receiving from the conductor a transfer which entitled him to transfer from car to bus at the crossing of Delmar Boulevard and DeBaliviere Avenue and to complete the journey by bus. He fell and was injured while going from the point where he alighted from the street car to the place where he intended to board the bus. His petition makes nine assignments of negligence on the part of defendant which may be thus summarized: That defendant negligently failed to furnish him, as its passenger, safe means or place to transfer from car to bus and failed to exercise the highest degree of care in that respect; that the sidewalk at the place where he fell was at the time maintained and used by defendant as a "loading place," at which to take passengers on its busses and that it negligently maintained said place with said signpost lying thereon constituting a dangerous obstruction to persons using the same for waiting and boarding its busses; that it negligently permitted said post or pipe to remain on said sidewalk and loading place when it knew or should have known that such obstruction was dangerous to plaintiff and other passengers of defendant transferring from its street cars...
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