Armstrong v. City of Monett

• Decision Date: 05 March 1921
• Docket Number: No. 21806.,21806.
• Parties: ARMSTRONG v. CITY OF MONETT.
• Court: Missouri Supreme Court

228 S.W. 771

ARMSTRONG v. CITY OF MONETT.

No. 21806.

Supreme Court of Missouri, Division No. 1.

March 5, 1921.

Appeal from Circuit Court, Barry County; Charles L. Henson, Judge.

Action by George R. Armstrong against the City of Monett. Defendant's demurrer to the evidence was sustained, whereupon plaintiff took a nonsuit with leave, and, his motion to set aside the same and grant a new trial being sustained, the city appeals. Reversed and remanded, with directions.

John T. Burgess and T. D. Steele, both of Monett, and D. H. Kemp, of Cassville, for appellant.

Owen & Davis, of Joplin, for respondent.

SMALL, C.

I. Appeal from the circuit court of Barry county. Suit for personal injury occasioned by plaintiff falling on the sidewalk in the city of Monett on the west side of Fifth street, near the depot of the St. Louis & San Franscisco Railroad, and breaking his leg. Plaintiff had been to Peirce City, and had just arrived on the train and was returning to his home in Monett. The accident happened between 8 and 9 o'clock, December 23, 1916. There were no electric street lights near the point where he fell, but the lights from the business houses "shined some across the street."

The charge of negligence in the petition was:

"That prior to the 23d day of December, 1916, snow had fallen and had accumulated in large quantities upon said sidewalk; that said sidewalk was a much-traveled sidewalk, and the accumulated snow thereon had, by reason of thawing and by reason of travel upon and over said walk while said snow was in a thawing condition, become rough and uneven, full of holes and ridges, and that said snow, after it had become rough and uneven as aforesaid, had frozen as hard as ice, and in fact bad become ice; that the roughness and unevenness of said packed snow and ice made it an obstruction and caused said walk to be dangerous and unsafe for travel thereon; that defendant knew of the falling of said snow and the accumulation thereof on said walk, and also knew, or could have known by the exercise of ordinary care and caution, that said snow had thawed and that it had become, by reason of the travel thereon, rough and uneven, and had become an obstruction on said sidewalk by reason of its uneven and rough condition, and that it was dangerous and unsafe for travel thereon by reason thereof; that defendant could, by exercise of ordinary care and caution, have removed said snow and ice before the accident herein complained of, but negligently and carelessly failed and omitted to remove the same and to make said walk reasonably safe."

As to the cause and manner of the accident, the plaintiff testified:

"I went to Peirce City on the afternoon of December 24, 1916 [witness afterwards said December 23d]. I left Monett shortly after ti o'clock and returned between 8 and S.I came on the train; it stopped up near Fifth street. There was quite a lot of snow on the ground from the 20th of December. I remember snow falling along about the 18th, 10th, and 20th of December. 1 do not know how much fell, but the sidewalks were covered in some places; that snow continued to lie on the ground. I think it snowed about the 20th of December; I judge about five or six inches; that snow was still on the ground on the 25th of December. After getting off the train that evening I returned from Peirce City, 1 took Fifth street to go uptown, because the train was nearly up to Fifth street. I took the west side. That was on Christmas Eve. The sidewalk was very rough and uneven and slippery on account of snow and ice; the snow had been tramped into ridges on the sidewalk and made it very rough and uneven.

"Q. How far had you passed upon that sidewalk walking upon it before you fell, if you did fall? A. It is between the depot and the bridge across Kelley creek; it would probably be 100 feet from the street line where the sidewalk begins.

"Q. Now, explain to the jury about your falling there on that snow and ice. A. Well, I, in walking up the street on my way home, and the sidewalk was very rough and uneven, and I slipped and fell and broke my limb.

"Q. The snow had not been cleaned off that walk when you attempted to pass over it? A. Of course, I do not know, but do not think it had. It had every appearance of the snow being on there for quite a while. I do not know how wide that sidewalk is; judge that it is six or seven feet wide. The weather was cold and freezing. I do not think that there was any snow on that day, but there was snow several days before that.

"Q. Well, the temperature from about the 20th of December on up until after Christmas was all the time below freezing, wasn't it? A. I think it was. I was carrying a grip in my hand.

"Q. Did you notice the condition of the sidewalk before you fell? A. I didn't notice it much until after I began to slip where fell. I noticed that it was rough and uneven, but it seemed to be so that I could get over it.

"Q. That condition of the roughness of the sidewalk was all over the sidewalk, wasn't it? A. Seemed to be.

"Q. Did you notice it being very slick? Did you contemplate going back and going up the other street? A. No; I thought if I was on the other street that I would be better off at the time I fell,

"Q. About the time you noticed you slipped and fell? A. Yes, sir.

"Q. About the time you noticed that it (wad) very slick and slippery? A. Yes, sir; I noticed that. I noticed it was in bad condition. Rough all the way down, for that matter.

"Q. Well, now, you state that you didn't pay any attention to this condition until you fell? A. Why, not particularly. I wasn't, of course, I noticed that the sidewalk was rough and uneven; I was expecting to fall. I wasn't thinking of that. I judge the sidewalk to be about eight or ten feet wide; there was nothing the matter with the sidewalk except this slick, icy condition.

"Q. Well, this snowy and icy condition that you mention and speak about extended all over the town and Southwest Missouri, didn't it? A. Yes, sir; it did. I fell on Saturday evening. I think Christmas came on Sunday; that is my recollection. I may be mistaken about it. I fell on Saturday night.

"Q. Now, Mr. Armstrong, I will ask you if you remember testifying to the following question that was asked you, and if you answered it as I read it to you, in giving your deposition: `Question. When did this snow fell (fall)? Answer. I have no recollection of that. Snow had been falling off and on for several days. Question. Did you think there was as much as two inches fell that night? Answer. There was two inches of snow on the sidewalk that night, I think, but there was ice on it.' Were these questions asked you and you answered that way? A. Yes, sir; I answered them that way, just as I explained to you; the snow was tramped into an icy condition.

"Q. I simply asked if you gave these answers to these questions, and you say you did, and that is a fact? A. Yes.

"Q. How thick do you think the ice was there on the sidewalk? A. It might have been two inches through in places, other places not so thick. * * * It was icy and had been for several days. * * * I was injured on Saturday, the 23d day of December, 1916. It was on the Saturday night before Christmas, which would be the 23d day of December."

A certificate of the United States official of the Bureau of Fisheries at Neosho was introduced in evidence by plaintiff, showing that the maximum temperature at Neosho above zero for several days before December 23d, the date of the accident, was as follows:

"December 18, 42°; December 20, 45°; December 22, 37°; December 19, 49°; December 21, 16°; December 23, 47°."

And also that there was one-fourth of an inch of snow on December 18th, and six inches on December 21st, at Neosho.

Mrs. Minnie Trent testified for plaintiff:

That on Christmas Day, December 25, 1916, between 12 and 1 o'clock, she and her husband passed over the sidewalk where plaintiff was injured; that it was "awfully rough and slick, and after you got over the bridge very rough on to the mailroom. The snow and ice was on there, and had been traveled over and tramped until it was awfully rough and icy; that was the condition both north and south of the bridge "Q. You say you passed over that sidewalk on Sunday between 12 and 1? A. Yes, sir.

"Q. That was Christmas day? A. Yes, sir.

"Q. Can you recall, Mrs. Trent, when it snowed with reference to that time? A. Just on Sunday before I passed over that bridge the following Sunday, it snowed that day; then it snowed the middle of the week, some time, either Wednesday of (or) Thursday.

"Q. Before Christmas Day? A. Yes, sir. The snow was awfully deep; must have been four or five inches. It had not been cleaned off the walk when I passed over same Christmas Day. Fifth street is one of the main traveled streets going to the depot, and the snow had been tramped into this rough and rugged condition. * * * The sidewalk was bad, had been tramped on, and this was true all over the sidewalk and the street from side to side. * * * "Q. You do recall it was sleeting some time during that night? A. Yes, sir."

Witness also testified that there was a heavy snow on the ground the Saturday night that plaintiff fell, and that she remembered of it sleeting some time during that Saturday night. GA motion of defendant city, that portion of Mrs. Trent's testimony stating the condition of the walk on Christmas Day, December 25th, was withdrawn from the jury.

The deposition of Ed. Trent, the husband of Mrs. Trent, was offered in evidence by plaintiff. He testified: That he was with his wife when she passed over the walk in the early part of the afternoon on Christmas Day, December 25, 1913, and described the character and condition of the weather and walk substantially as testified to by his wife. On objection of defendant, the deposition was excluded from evidence, because it related to the situation as it existed December 25th, and not December 23d.

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