Bielman v. Joseph

• Decision Date: 07 April 1924
• Docket Number: No. 14996.,14996.
• Parties: BIELMAN v. CITY OF ST. JOSEPH et al.
• Court: Missouri Court of Appeals

260 S.W. 529

BIELMAN v. CITY OF ST. JOSEPH et al.

No. 14996.

Kansas City Court of Appeals, Missouri.

April 7, 1924.

Appeal from Circuit Court, Buchanan County; Thomas D. Allen, Judge.

"Not to be officially published."

Action by Lucile Bielman against the City of St. Joseph and another. Judgment for plaintiff, and defendants appeal. Affirmed.

W. B. Norris and W. M. Morton, both of St. Joseph, for appellant Colhoun Realty Co.

Lindsay, Hess & Muster, of St. Joseph, for appellant City of St. Joseph,

Sherman, Stigall & Kranitz, of St. Joseph, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $2,750, and defendants have appealed.

The facts show that plaintiff was injured about 3 p. m. of December 24, 1921, by stumbling Over and falling upon ice on Sixth street, a north and south street in the city of St. Joseph. The defendant realty company is the owner of a tract of land on the east side of Sixth street, having a frontage thereon of 158 feet. Plaintiff fell about 20 or 25 feet south of the south line of this tract in front of premises known as the Tootle property. Sixth street is paved in front of these properties and slopes to the south. The sidewalk on the east side of the street is concrete and about 6 feet in width. The Tootle property is much lower than the Colhoun property, the former being 4 or 5 feet higher than the sidewalk and the Colhoun property being 30 feet above the sidewalk. There is a retaining wall between the two properties.

The Colhoun property is terraced to the west down to Sixth street. The slope of this property is west toward Sixth street for a depth of about 100 feet from the property line. However, the slope of the whole tract is more abrupt to the south. North of the Colhoun property, and adjoining it, is a residence which is about 35 feet above Sixth street, one means of access to which is by a long brick walk, or pathway, 3½ feet in width running across the entire front of the Colhoun property and diagonally down the face of the terrace, terminating in a short series of wooden steps leading to the pavement on Sixth street at the southwest corner of the Colhoun property. These steps are on the south line of the Colhoun property and run westwardly from the end of the brick walk around a curve and down to the sidewalk on Sixth street. There is a brick wall to the east of this long sidewalk, or pathway, which supports that part of the terrace above the long walk. Below this sidewalk is the lower part of the terrace which has no retaining wall to support it.

There is an old drain pipe, the upper end of which is at the top of the brick retaining wall just north and above the wooden steps. This pipe goes down underneath the long brick walk and comes out in the face of the lower terrace just north, and near the top of the wooden steps. This drain pipe had formerly been connected with the sewer, but had been stopped up, and no water had flowed therefrom for a long time prior to the day of plaintiff's fall. These wooden steps have on each side a brick retaining wall which comes clear down to the sidewalk on Sixth street.

The evidence shows that this long brick walk caught the waters that came off the Colhoun property from over the retaining wall and that this water was caused to be held thereon by a series of bricks inserted edgewise along the west edge of the walk which, according to the testimony of one witness, formed a trough sufficient to carry the water down to the steps. The lower 25 or 30 feet of the brick walk next to the entrance of the steps was supported along its outer edge by a 2x12 plank set edgeways into the ground, which also aided in holding the water on the walk. The water from the brick walk ran down the steps, being confined thereto by the wall on each side thereof, onto the sidewalk on Sixth street. The sidewalk on said street extending south from these steps had a down grade of about a foot to the point where plaintiff fell. The grass on each side of the sidewalk was slightly higher than the sidewalk. There was direct testimony that the ice over which plaintiff stumbled extended from the steps of the Colhoun property to and beyond that point and was caused to form on the sidewalk at the place where plaintiff fell from water that had flowed down the long brick sidewalk and steps and onto the sidewalk upon which plaintiff fell. This ice was rough and in ridges from 1½ to 2 inches in thickness. The walk had been in exactly the same condition for at least three days before the fall. There was a general condition of slickness all over the city at the time plaintiff fell. This slickness was due to mist which fell in freezing weather, causing a very thin layer of ice about one-sixteenth of an inch thick.

The petition, which is attacked by both defendants as failing to state a cause of action, alleges that the rough and uneven ice over which plaintiff fell was caused as follows:

"That defendant Colhoun Realty Company, for a long time prior to said date and on said date, negligently maintained a winding pathway or series of steps from the surface of their property herein described, which said winding pathway and series of steps is supported on the side next said Sixth street by a short embankment constructed in such a way that water running off of said lot and said premises is and has for a long time been conducted along said steps and pathway down to the entrance to said lot, which said entrance is and has been located at the southeast corner of said lot and adjoining the sidewalk above mentioned. Plaintiff states that defendant Colhoun Realty Company also negligently maintained at said southwest corner of their said premises and near the entrance to said lot an open pipe or drain extending back from said sidewalk into the earthen terrace of said premises, which pipe does and has for a long time prior to the date above mentioned conducted water from said lot and poured the same upon the sidewalk at said place. Plaintiff states that for several days prior to said 24th day of December water had thus negligently been permitted by defendant realty company to flow from said premises along said series of steps and out through said drain pipe upon the sidewalk along the east side of North Sixth street in freezing weather and down along said sidewalk southward in front of the" Tootle premises.

It is claimed that the petition fails to state a cause of action for the reason that it fails to allege that the water was accumulated and thrown in an increased volume onto the sidewalk. It seems to be defendants' theory that unless water was thrown in an increased volume upon the sidewalk the property owner would not be liable. However, this is an error. "Where the owner of higher lands constructs a ditch to drain the surface water therefrom, * * * which throws the water upon" the land of a lower proprietor, "in a manner different from that in which it would have naturally flowed, to the latter's injury, it has been held that the former is liable for the injury thus occasioned." 27 R. C. L. 1153. If the upper owner causes the water flowing upon his land to discharge upon the lower estate, at a point which would not have been its natural destination, to the injury of the lower estate, he is liable for the damage done. 40 Cyc. 647; McCormick v. Railroad, 70 Mo. 359, 35 Am. Rep. 431; Reedy v. Brewing Ass'n, 161 Mo. 523, 534, 535, 61 S. W. 859, 53 L. R. A. 805;

Peters v. Lewis, 28 Wash. 366, 68 Pac. 869, 870.

There was no attack made upon the petition at the trial. While it may defectively state a cause of action, we think there is no question but that it states by intendment that water falling upon the property of the Colhoun Realty Company was collected and discharged in a body or stream upon the sidewalk. We think there is no question but that the petition states a good cause of action. Paddock v. Somes, 102 Mo. 226, 14 S. W. 746, 10 L. R. A. 254; Thoele v. Planing Mill Co., 165 Mo. App. 707, 148 S. W. 413.

It is next insisted by the defendants that the court erred in giving plaintiff's instruction No. 1. This instruction tells the jury that if defendant realty company negligently maintained a brick wall and series of steps in the manner shown by the evidence so that the water from the Colhoun property was collected into a channel and conducted upon the sidewalk on Sixth street in freezing weather and such water was caused to flow across the sidewalk in front of the premises south of the Colhoun property and was—

" * * * permitted to mix with snow upon said sidewalk, provided you so find, and permitted to freeze " into ice on said sidewalk;...