Bentley v. Rothschild Bros. Hat Co.

• Decision Date: 06 June 1910
• Citation: 144 Mo. App. 612,129 S.W. 249
• Parties: BENTLEY v. ROTHSCHILD BROS. HAT CO.
• Court: Missouri Court of Appeals

129 S.W. 249

144 Mo. App. 612

BENTLEY v. ROTHSCHILD BROS. HAT CO.

Springfield Court of Appeals. Missouri.

June 6, 1910.

1. MUNICIPAL CORPORATIONS (§ 806)—DEFECTIVE SIDEWALKS—DUTY OF PEDESTRIAN.

A person passing along a sidewalk without knowledge of any defects therein is not required to constantly watch for holes in the walk or obstructions thereon, but may assume that the walk is in a reasonably safe condition and act on that assumption.

2. MUNICIPAL CORPORATIONS (§ 808)—DEFECTIVE SIDEWALKS—MANHOLES—ADJOINING PROPERTY OWNERS—LIABILITY.

Where defendant maintained a manhole in a sidewalk for its own convenience and benefit to facilitate unloading of goods into its basement, it was required to use the same care to keep the walk safe and prevent injury to pedestrians as the city would be had it maintained the hole in the walk.

3. MUNICIPAL CORPORATIONS (§ 808)—SIDEWALKS — MANHOLES—ADJOINING PROPERTY OWNERS—NEGLIGENCE.

Where defendant, an adjoining property owner, maintained a manhole in a sidewalk to facilitate the unloading of goods into its basement, and during the unloading of goods left the hole open, so that a pedestrian walked into it, when the hole could have been protected by a grate closed on three sides or by requiring defendant's employé who was standing near the hole to keep a lookout and warn pedestrians, which he failed to do, defendant was negligent.

4. MUNICIPAL CORPORATIONS (§ 821)—DEFECTIVE SIDEWALKS—INJURIES TO PEDESTRIANS—CONTRIBUTORY NEGLIGENCE.

Plaintiff, without knowledge of a manhole in a sidewalk through which defendant's employés were unloading goods into its basement, on coming out of defendant's building observed an acquaintance, who was standing near the hole. Plaintiff started to greet his acquaintance, and did not notice the team or wagon near the hole, but walked toward his friend and stepped into the hole and was injured. Held, that plaintiff was not negligent as a matter of law.

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

Action by John A. Bentley against Rothschild

Brothers Hat Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Watts, Williams & Dines and William R. Gentry, for appellant. Blevins & Jamison, for respondent.

COX, J.

Action for damages caused by plaintiff stepping in a hole in the sidewalk adjacent to the business house of defendant on St. Charles street in the city of St. Louis. The petition alleges: That the defendant kept and maintained in said sidewalk, about 3½ feet from the wall of its building, a manhole or opening therein, leading from St. Charles street into defendant's basement underneath, and under the said sidewalk and building. That said manhole was sometimes used by defendant as a passage or way for unloading into and taking out of said basement merchandise and freight. That this manhole was circular in form and even with the surface of said sidewalk and was about two feet in diameter. That it was covered with a lid, and that, on the occasion of the injury complained of, the lid had been removed by defendant, and the manhole was open, and that plaintiff, while using due care upon his part, stepped therein and was injured. The answer was a general denial and a plea of contributory negligence. Trial was had before a jury, resulting in a verdict for plaintiff for $6,880, upon which judgment was rendered. Defendant, after having taken the proper steps, appealed, and assigns as error the action of the court in overruling a demurrer to the evidence, and error in giving instructions at the request of plaintiff.

The instruction which it is claimed is erroneous is as follows: "If the jury find and believe from the evidence that the sidewalk mentioned in the evidence was a public thoroughfare and in common and general use by pedestrians, and that plaintiff did not know that the covering had been removed from the manhole or opening in said sidewalk, then the plaintiff had the right to act upon the assumption that the said sidewalk was in a reasonably safe condition; plaintiff being required, however, in going or walking along or upon said sidewalk, to exercise reasonable care for his own safety."

We discover no error in this instruction. It asserts a correct proposition of law. It is not the law that a person passing along a sidewalk in a city, who has no knowledge of any defects therein, is required to be constantly watching for holes in, or obstructions upon, the walk, but he has the right to assume that the walk is in a reasonably safe condition and to act upon that assumption. Heberling v. City of Warrensburg, 204 Mo. 604, 103 S. W. 36; Perrette v. Kansas City, 162 Mo. 238, 62 S. W. 448; Coffey v. Carthage, 186 Mo. 573, 85 S. W. 532.

This brings us to a consideration of the demurrer to the testimony. The evidence in this case shows: That the defendant did maintain what is called a manhole in the sidewalk some 5 feet from the building, and about 2½ feet from the curb. That at the time of the accident the defendants had removed the cover from this manhole and was unloading from a wagon backed up to the curb bales of hickory wood straps, each strap about 8 feet long, 1 inch wide, and ¼ inch thick, 100 of which, being tied together, constituted a bale. There was a man in the wagon who handed the bales to one Edwards, who stood upon the walk, and who put the bales through the hole on the walk, where they were received by a man in the basement. That at the time of the injury the plaintiff came out of the door of the building of defendant about 12 feet from this hole. That on going out he discovered Edwards, who was an old acquaintance of his, and who was standing at or near the hole. Plaintiff had started to go diagonally across the street to a cigar stand, but on seeing Edwards started to go to him to greet him, and, as he testifie...