Bohn v. City of Maplewood

• Decision Date: 07 February 1939
• Docket Number: No. 25009.,25009.
• Parties: BOHN v. CITY OF MAPLEWOOD et al.
• Court: Missouri Court of Appeals

124 S.W.2d 649

BOHN v. CITY OF MAPLEWOOD et al.

No. 25009.

St. Louis Court of Appeals. Missouri.

February 7, 1939.

Appeal from Circuit Court, St. Louis County; John J. Wolfe, Judge.

"Not to be published in State Reports."

Action by Anna Marie Bohn against the City of Maplewood, Mo., a municipal corporation, and another for injuries sustained in stepping into an uncovered sewer vent. From the judgment named defendant appeals.

Affirmed.

Charles E. Altenbernd, of Maplewood, for City of Maplewood.

P. R. Goodenough and Albert E. Hausman, both of St. Louis, for respondent.

HOSTETTER, Presiding Judge.

Plaintiff, Anna Marie Bohn, a widow seventy-three years of age, while walking along the concrete sidewalk on Lyndover street at 7274-76, Maplewood, St. Louis County, Missouri, on April 25, 1936, stepped into an uncovered sewer vent at about the center of the sidewalk, and injured herself rather seriously by her fall. Maplewood is a city of the third class. She caused notice of the accident and her claim for damages to be served on the Mayor of the city within ninety days after the occurrence, and brought her suit for damages against the city and also against Otto P. Grimm, the adjacent landowner, claiming $7,500.

At the trial of the case before a jury the plaintiff dismissed as to defendant Grimm at the close of the testimony. She was awarded a judgment against the city for $2,000.

Her petition was in conventional form and charged that the defendant city either knew, or, by the exercise of ordinary care, would have known, that the said vent hole in the drainpipe was, for a long time prior to April 25, 1936, without any cover or top and was open and dangerous, or, by the exercise of ordinary care, could have known of such dangerous condition, and that it was the duty of defendant city to use ordinary care to keep said sidewalk in a reasonable state of repair and in a reasonably safe condition for pedestrians, but that the city, after it had knowledge of the dangerous condition of this open sewer vent, or could have known of such dangerous condition by the exercise of ordinary care, negligently permitted it to remain open and dangerous without fastening the top thereon, and as a result plaintiff stepped into said vent hole and was injured.

The petition minutely described the injuries to plaintiff, but, as the verdict was for only $2,000 and the appealing defendant does not claim that the verdict is excessive, we omit the description of her injuries.

The answer of the defendant city was, first, a general denial, followed by a plea of contributory negligence on the part of the plaintiff in failing to watch her step while traversing the sidewalk at and along Lyndover street at the place where the open sewer vent was located, and that thereby it was not liable for any damages on account of her fall and injury to herself.

Plaintiff's reply was a general denial.

After the rendition of the verdict judgment was rendered thereon, and defendant city filed a motion for a new trial, which contained only three complaints of the action of the trial court, towit: that the court erred in refusing instructions A, B and D, offered by defendant; that the court erred in giving instructions 1 and 6; and that the court erred in permitting improper testimony over the objections of defendant. The motion for a new trial having been overruled by the court, defendant, in due course, perfected its appeal to this court.

In the center of the concrete sidewalk, which was between three and four feet in width, was a sewer vent pipe nine inches in diameter at the surface and about four feet deep; the top thereof was flush with the surface of the sidewalk and prior to the date of plaintiff's accident had been covered with a circular iron lid which was loose and easily removed. The lid was missing on the day of plaintiff's injury and had been for sometime prior thereto. The circular iron lid when properly placed was flush with the sidewalk and constituted a part of it.

Immediately adjacent to 7274 Lyndover and on the east side thereof and at right angles to Lyndover and extending from a point south of the sidewalk northwardly across the sidewalk, there was a driveway for automobiles which had a sharp downgrade from south to north. As plaintiff approached this driveway she thought she heard an automobile coming north on this driveway and along the east side of 7274 Lyndover and she looked toward the driveway, and at that moment her right foot went into the open vent pipe and she fell, sustaining injuries. She had no prior knowledge of the sewer vent nor of its open, unprotected condition. In fact she testified that she had not used this sidewalk for more than three years prior to the date of the accident.

Plaintiff called several witnesses who lived in the immediate vicinity of the open vent pipe who testified substantially as follows:

Mrs. Friedewald testified that she saw the little boy, Jerry Harris, who lived in the neighborhood, take the lid off the vent pipe prior to the date of the accident, and at one time she made him put it back by scolding him; and described the cover as a round, iron lid that was easily taken off.

Carl Friedewald testified that he knew of Jerry Harris taking the lid off and that he ran away with it.

Vera Luebke testified that the lid was about six inches in diameter, and that she knew the lid was off for three or four days at a time, and that she had reported the lid being off to the owner of the property, but not to the city.

Mrs. Ryckman testified that she moved to 7276a Lyndover on October 15, 1935; that the lid was off frequently and would remain off days and days at a time.

Mrs. Hawkins testified that she saw the lid off several times.

All this testimony referred to the condition of the ventpipe prior to the date of the accident.

The testimony adduced by the defendant was to the following effect:

Harry G. McClure testified that, at the time plaintiff was injured by stepping into the vent hole, he was superintendent of streets and sewers for the city of Maplewood and had been for about two years; that he repaired the hole by cementing the lid over it when notice of suit was served on the Mayor on July 14, 1936; that he had no notice of its condition prior to that date; that the top of the vent where the lid fitted on was six or seven inches across; that the only purpose of the vents that come up through the sidewalks is to give air for the sewer connections below.

Counsel for plaintiff insists that we should dismiss defendant's appeal because of alleged fatal defects in its brief, towit: a failure to assign errors as required by Rule 18 of this court, and also failure under "Points and Authorities" to point out any alleged errors committed by the trial court of which complaint is made; that the mere statement of abstract propositions of law, followed by citation of authorities, which comprises appellant's points and authorities, is not "Assignment of Errors" sufficient to comply with Rule 18 of this court.

It is true, as urged by counsel for plaintiff, that there are no assignments of error in the brief filed on behalf of the defendant. However, under the head of points and authorities there is a statement in general terms, in which there is some discussion as to points arising in the case on appeal, together with citation of authorities. While the brief on behalf of the appealing defendant in this court is not in a form to be commended, yet we are of the opinion that sufficient is shown in the brief filed to enable the court to determine the nature of the complaints made as to the alleged errors of the trial court, and we, therefore, overrule the request of plaintiff's counsel to dismiss the appeal. Scullin Steel Co. v. Mississippi Valley Iron Co., 308 Mo. 453, 273 S.W. 95; Esstman...