Barry v. Calvary Cemetery Ass'n.

Decision Date26 April 1904
Citation80 S.W. 709,106 Mo. App. 358
PartiesBARRY v. CALVARY CEMETERY ASS'N.
CourtMissouri Court of Appeals

1. Plaintiff, owning a lot in and having a card of admission to defendant's cemetery, instead of following the road leading to the lot, started across the grounds, and stepped into a hole concealed by the grass. Though visitors were expected to keep to the walks and roadways, they were not required to, and were in the habit of traveling over the grounds at will. Held, that she was merely a licensee, and therefore could not recover for her injury.

Appeal from St. Louis Circuit Court; Robt. M. Foster, Judge.

Action by Kate Barry against the Calvary Cemetery Association. Judgment for plaintiff. Defendant appeals. Reversed.

E. T. Farish, for appellant. David Murphy, for respondent.

Statement.

BLAND, P. J.

Plaintiff's suit is to recoved damages for injuries to her ankle, caused by stepping in a hole on the grounds of defendant, who is a corporation organized under the laws of the state, and is engaged in keeping and maintaining 450 acres of ground in the city limits of the city of St. Louis for cemetery purposes, known as "Calvary Cemetery." The evidence shows that defendant sells burial lots in the grounds; that of the 450 acres 200 acres have been improved by the construction of 12 miles of driveways, and also by the laying of some granitoid walks. The grounds are under the immediate care of a superintendent, who has employed under him 35 men in the winter season and 50 in the spring and summer seasons to keep the grounds and roadways in good condition. Except on funeral occasions, the public are not admitted to the grounds. The owners of burial lots are furnished with a card, which admits them to the grounds at any time they may choose to visit them. The plaintiff is the owner of a burial lot on the grounds, where her brother is buried, and has a card of admission. On July 13, 1902, plaintiff, her daughter, and sister entered the cemetery for the purpose of visiting the grave of plaintiff's brother. This grave can be reached by a road running direct from the main entrance to the grounds. The roadways are circular, and plaintiff testified that, although she had visited the grave of her brother twelve or more different times, on account of the circular form of the road she did not know how to go direct to her brother's grave, and frequently lost her way by turning onto the wrong road. The party first went to the graves of some children, and then turned and traveled on a road leading in the direction of the brother's grave. When they had arrived within 500 feet of the grave, they left the circular road to travel direct to the grave across the grounds, then covered by a high growth of grass. On taking the second step from the road, plaintiff stepped into a hole (she is a large woman, weighing 200 pounds), and was unable to extricate her foot until assisted to do so by a man who was near by. Her ankle was badly sprained, and she was unable to stand or walk. On account of the injury she was confined to her bed for about two months, and suffered considerable pain. Her attending physician testified that he put her ankle in light splints; that it was a very bad sprain, but he did not think the injury permanent. Plaintiff testified, as all the evidence shows, that the hole in which she stepped was covered over and entirely concealed from view by grass which grew around and lapped over it. A measurement of the hole showed it to be 9½ inches deep, 14 inches long, and 11 inches wide; that it was an old hole with a stump or end of a decayed root at the bottom, which had the appearance of having been hacked off. Near by was a large, live maple shade tree, the roots of which, according to the evidence, extended 20 or more feet from its trunk. Plaintiff testified that the ground looked solid; that she did not see the hole, and had no warning of its presence until she stepped into it. The evidence shows that, while visitors to the grounds are expected to keep on the walks and roadways, yet they are not required to do so, and they are in the habit of traveling over the grounds at will. The evidence shows that the superintendent did not learn of the existence of the hole until October, 1902, nor is there any evidence tending to show that any employé of the association knew of the existence of the hole until after plaintiff's injury. The superintendent testified that the grounds were infested by gophers, and that they frequently made holes like the one in which plaintiff stepped, and that these holes were often made larger by dogs scratching after the gophers; that the employés were instructed by him to keep a lookout for such holes, and, when found, to fill them up with clay. The evidence does not show when the hole was made, or by what means it was made. It is described, however, as an "old hole," and the physical facts surrounding it show that it was there early in the spring before the growth of the grass. Defendant demurred to plaintiff's evidence. The demurrer was overruled, and under the instructions of the court the plaintiff recovered a verdict and judgment in the sum of $350. Defendant appealed.

Opinion.

The evidence shows that the part of the grounds where plaintiff was injured had been laid off into burial lots and roadways; that the roadways had been improved,...

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