Barry v. Calvary Cemetery Ass'n.

• Decision Date: 01 April 1908
• Citation: 109 S.W. 559,211 Mo. 105
• Parties: BARRY v. CALVARY CEMETERY ASS'N.
• Court: Missouri Supreme Court

109 S.W. 559

211 Mo. 105

BARRY v. CALVARY CEMETERY ASS'N.

Supreme Court of Missouri, Division No. 1.

April 1, 1908.

CEMETERIES—INJURY TO LOT OWNER—HOLES IN VACANT LOTS—LIABILITY.

A cemetery company, even though knowing persons were in the habit of wandering over the grounds regardless of the roads, is not liable to one owning a lot in the cemetery, who, leaving the roads 500 feet from her lot, which was only 100 to 200 feet from a road, started across lots to her lot, and stepped in a hole, just large enough for her foot, which was concealed by the grass, and which was not shown to have been made by the company, or to have been known of by it, or likely to be discovered by it, except by accident or extraordinary care.

Appeal from St. Louis Circuit Court.

Action by Kate Barry against the Calvary Cemetery Association. Judgment for defendant, and plaintiff appeals. Affirmed.

David Murphy, for appellant. J. L. Hornsby, for respondent.

VALLIANT, P. J.

This is an action for damages for personal injuries sustained by the plaintiff in consequence, as she alleges, of the negligence of the defendant. The defendant, as its name indicates, is a cemetery association. It owns a large cemetery in the city of St. Louis, containing several hundred acres. The plaintiff, according to her petition, had a proprietary interest in a lot in the cemetery and a sentimental interest in the fact that a deceased brother of hers was buried in the lot and she had the right to visit the cemetery. The petition charges that it was the duty of the corporation "to keep its grounds and every part thereof contiguous to the burial lots in a reasonably safe condition, so that lot and grave owners and others could pass over and upon the grounds of defendant to and from their respective lots and graves"; that on a certain day she was lawfully in the cemetery on her way to visit the grave of her brother, walking across the grounds of defendant; that there was an excavation or hole in the ground, on every side of which the grass had so grown and bent down as to completely conceal it, and in consequence the plaintiff stepped into the hole with one foot, and badly sprained her ankle and seriously injured the joint. The petition avers that the defendant knew, or by the exercise of ordinary care could have known, that the hole was there. The damages alleged $4,700. The answer was a general denial, and a plea of contributory negligence. At the close of the plaintiff's case the court at the request of the defendant gave an instruction to the effect that the plaintiff was not entitled to recover, which resulted in a nonsuit, with leave, which the court refused to set aside, and plaintiff has appealed.

The plaintiff's testimony tended to show as follows: On the morning in question the plaintiff, in company with her sister and daughter, was in the cemetery, aiming to go to the grave of the plaintiff's brother. They first intended to visit another lot, and they started in that direction; but after going a part of the way they concluded to abandon that purpose and turned back to visit the brother's grave. There were roadways and sidewalks in the cemetery, and up to the time the plaintiff and her companions turned back they had walked along the sidewalks; but they came to a point where they thought they could shorten the walk, and, as one of the party manifested a desire to return in time to go to church that morning, they concluded to leave the regular roadway and sidewalk, and cut across vacant lots, and they did so. The plaintiff's sist...