Barrett v. Town of Canton

• Decision Date: 23 April 1936
• Docket Number: 33349
• Parties: Jennie A. Barrett, Administratrix of the Estate of Harry H. Barrett, v. The Town of Canton, a Corporation, Appellant
• Court: Missouri Supreme Court

93 S.W.2d 927

338 Mo. 1082

Jennie A. Barrett, Administratrix of the Estate of Harry H. Barrett, v. The Town of Canton, a Corporation, Appellant

No. 33349

Supreme Court of Missouri

April 23, 1936

Rehearing Denied April 23, 1936.

Appeal from Scotland Circuit Court; Hon. Walter A. Higbee Judge.

Affirmed and remanded.

A F. Haney, Barker Davis and Luther & Luther for appellant.

(1) Where the evidence is insufficient to make out a case for plaintiff, and the trial court sets aside a verdict rendered for defendant, upon an appeal being taken by defendant from the order granting plaintiff a new trial, the appellate court will reverse the judgment and remand the cause with directions to the lower court to enter judgment for defendant on the verdict. Haven v. Railroad Co., 155 Mo. 216, 55 S.W. 1035; Graney v. Ry. Co., 157 Mo. 666, 57 S.W. 276. Even where the evidence is sufficient to make out a case for plaintiff, if the trial court gives an insufficient ground for setting aside a verdict rendered for defendant, the cause will be remanded with directions to enter up judgment for defendant on the verdict. Authorities above cited. (2) The evidence fails to make out a case for the plaintiff and against the defendant, Town of Canton. The evidence shows that the icy conditions prevailing on the sidewalk on which plaintiff slipped and fell also prevailed on the sidewalks all over the town, and was a general condition caused by the rains, sleets and snowfalls which occurred during the month of January, and by alternate freezes and thaws and the footprints of pedestrians, which made the surface of the ice on the sidewalks rough and slippery. Under the decisions of our courts, the town is not liable in damages to any one who is injured by slipping and falling on such sidewalk. Vonkey v. St. Louis, 219 Mo. 37, 117 S.W. 735; Armstrong v. Monett, 228 S.W. 774; Gist v. St. Joseph, 220 S.W. 723; Harding v. St. Joseph, 7 S.W.2d 711; Albritton v. Kansas City, 192 Mo.App. 578, 188 S.W. 239. (3) One who travels on a way on which he knows there are obstructions or defects, must use reasonable care while traveling along such defective way, and that care must increase in proportion to his knowledge of the risk. Wheat v. St. Louis, 179 Mo. 572, 78 S.W. 791; Knight v. Kansas City, 138 Mo.App. 153, 119 S.W. 991. "In such cases the degree of care is commensurate with the danger, which is tantamount to ordinary care." Combs v. Kirksville, 134 Mo.App. 645, 114 S.W. 1154. Plaintiffs knowledge of the unsafe condition of the walk is evidence of contributory negligence. Pierson v. Lebanon, 69 Mo.App. 325; Wheat v. St. Louis, 179 Mo. 572, 78 S.W. 791; Wood v. St. Joseph, 226 Mo.App. 615, 44 S.W.2d 249. Nor is this Instruction 3 erroneous on the ground that it does not require the jury to find that the acts of contributory negligence directly contributed to the injury. This institution directs the jury that, if they find that he is guilty of contributory negligence in the manner set out in the instruction, he cannot recover in this case, but does not direct the jury to find that plaintiff's negligence contributed to the injury. Such latter direction is not necessary in this instruction, because the particular act of negligence charged in this instruction is of such a character that, if plaintiff slips and falls, such negligence must be regarded as contributing to the fall. The negligence charged in the instruction was the failure to use care and caution in looking out for his own safety while walking on the ice-covered walk, and if he slips and falls while he is walking, the failure of such care is necessarily regarded as a contributing cause of the accident. The giving of such instruction is therefore not error. Barr v. Railroad Co., 37 S.W.2d 930; Carr v. St. Joseph, 225 S.W. 922; Mullen v. Sensenbrenner, 260 S.W. 982.

Smoot & Smoot and Earl M. Pirkey for respondent.

(1) If a city permits snow and ice to accumulate and remain in uneven and irregular masses, rough and uneven in elevation so as to form an obstruction to travel on foot, the city is liable for an injury resulting therefrom. Suttmoeller v. St. Louis, 230 S.W. 67; Barker v. Jefferson City, 155 Mo.App. 390; Jackson v. Kansas City, 181 Mo.App. 182; Reno v. St. Joseph, 169 Mo. 642. (2) The permitting of snow and ice to remain is a thing which makes the city liable. If the sidewalk is icy it is dangerous whether it is smooth and slick or rough and uneven. Wood v. St. Joseph, 44 S.W.2d 248. (3) Permitting a dangerous condition of snow and ice for seven days on the sidewalk is a sufficient time on which to base liability against the city. Wood v. St. Joseph, 44 S.W.2d 248. (4) Plaintiff is not guilty of contributory negligence in using the walk unless the condition is so threatening that a person of ordinary prudence in the exercise of ordinary care would not have used it. O'Donnell v. Kansas City, 58 S.W.2d 804. (5) Where a sidewalk is generally used a pedestrian is not required to leave the sidewalk and walk in the street where vehicles go. Combs v. Kirksville, 134 Mo.App. 645; Harding v. St. Joseph, 7 S.W.2d 711.

OPINION

Collet, J.

Harry H. Barrett was injured on January 15, 1930, by falling upon a slippery sidewalk in the city of Canton. He brought this action against that city to recover damages in the sum of $ 20,000. The facts are as follows.

Mr. Barrett was editor and part owner of The Canton Press-News. He did much of his work at his home and ordinarily did not go to his office until afternoon. On the day he was injured he went to his office about three o'clock in the afternoon. Shortly before five P. M. he went from his office to the postoffice which was slightly more than one block east and approximately one-half block south of his office. On January 8th or 9th an eight or nine inch snow fell in Canton and the surrounding territory. The temperature at the time of the snow was below freezing. Successive periods of freezing and thawing followed. There is evidence that at least one rain and some sleet fell after the snow and prior to plaintiff's injury on the 15th. January 14th the weather became colder, plaintiff's evidence indicating a maximum of about 30 degrees above zero and a minimum about zero. January 15th the maximum was about 22 degrees and the minimum about 3 degrees above zero. As a result of the freezing and thawing the streets and sidewalks were generally covered with ice. Some sidewalks had been cleaned, some others had been covered with sawdust or cinders. The sidewalks which had not been cleaned were rough and uneven. This was caused by footprints of pedestrians. Plaintiff's office was located on the south side of Clark Street which ran east and west. The next street east of his office was Fifth Street and the next Fourth. The sidewalk on the south side of Clark Street from plaintiff's office to Fifth Street was concrete, nine feet wide. Approximately eight feet east of the Press-News building (plaintiff's office) a driveway approximately nineteen feet wide had been constructed across the sidewalk from Clark Street and leading to a filling station which occupied the corner lot between the Press-News building and Fifth Street. The sidewalk from the Press-News building east to Fifth Street was covered with ice made very rough by indentations and ridges from two to five or six inches high. The driveway was fairly clean. In going to the postoffice plaintiff left his office, went east on the sidewalk to Fifth Street then instead of proceeding east on the sidewalk he walked in Clark Street to Fourth Street thence south to the postoffice. He explained that he walked in the street because he thought it safer. He stayed at the postoffice only a short time. Returning he took the same route. When he had progressed to a point (on the sidewalk) approximately three feet east of the east side of the driveway, which point was also approximately thirty feet east of the Press-News building, plaintiff slipped and fell and was seriously injured.

The case was tried in the Scotland County Circuit Court. The jury returned a verdict for the defendant. The trial court sustained plaintiff's motion for new trial assigning as grounds therefor error in defendant's Instruction 3. From the order of the court sustainig the motion for new trial defendant appeals. Since the appeal was granted plaintiff died. On motion the cause was revived in the name of Jennie A. Barrett, administratrix. Respondent will be referred to hereafter as if there had been no substitution.

It is asserted by appellant that Instruction 3 was correct but that even if it was not, the cause should be reversed because respondent's evidence failed to show facts which entitled him to recover and hence appellant's demurrers offered at the close of respondent's case and again at the close of all the evidence should have been sustained. If the latter point is well taken it disposes of the appeal and will therefore be considered first.

Respondent testified that the walk where he fell was very rough with ridges of ice from four to six inches high and that it had been in this condition about three weeks. Other witnesses for respondent stated that the walk was covered with ice; that it was very rough caused by footprints; ridges of ice formed from two to four or five inches high and that this condition had existed for at least a week or more. Several witnesses testified that the sidewalks in front of their homes, or places of business, had been cleaned off prior to the date of respondent's injury. All of the testimony clearly showed that alternate periods of thawing and freezing had followed the heavy snow.

We are asked to say, as a matter of law, that because the condition which existed at the place of respondent's injury was of the same...