O'Brien v. City of St. Louis, 48814
| Decision Date | 09 April 1962 |
| Docket Number | No. 2,No. 48814,48814,2 |
| Parties | Anita O'BRIEN, Appellant, v. CITY OF ST. LOUIS, a Municipal Corporation; and Eugene Klein and Helen Klein, Respondents |
| Court | Missouri Supreme Court |
Gregg Wm. Keegan, St. Louis, Stephen Gilmore, St. Louis, of counsel, for appellant.
Thomas J. Neenan, City Counselor, Alvin J. McFarland, Associate City Counselor, St. Louis, for respondent City of St. Louis.
Willson, Cunningham, McClellan & Gunn, Jerome M. McLaughlin, St. Louis, for respondents Klein.
STOCKARD, Commissioner.
This is an appeal from the judgment of the Circuit Court of the City of St. Louis entered on a jury verdict in favor of the defendants in plaintiff's suit for personal injuries resulting from a fall on a public sidewalk. Plaintiff claimed damages in the amount of $25,000. Appellate jurisdiction is in this court.
On February 3, 1959, about 1:30 o'clock in the afternoon plaintiff left her place of employment at St. Cecelia's Convent in St. Louis, Missouri, to walk home. As she was proceeding eastward on the south side of Bates Street in front of the home of defendants Eugene and Helen Klein she fell and was severely injured. There had been ice and snow when she went to work that morning and it was 'slippy,' but she said that when she walked home the sidewalks had been cleared. There was, however, some snow or ice on the south side of the sidewalk in the 200 block of Bates Street so she walked on that part next to the street where there was no ice and snow because it 'seemed the best place to walk,' She stated that she was walking 'cautiously' and was 'watching where [she] was going,' but her left foot hit a depression or hole, or 'caught in that hole,' and she fell on her right hip. She did not see the hole until after she fell. From photographs in evidence it appears that at the place where plaintiff claimed she fell there was a break in the concrete at the side of the sidewalk with a triangular piece missing, and that a brick had been placed there which was substantially but not entirely even with the concrete. This condition had existed for many years.
The evidence on behalf of defendants was to the effect that on February 3, 1959 there was a general condition of ice and sleet throughout the City of St. Louis, and that this condition existed at the time plaintiff fell. Defendants' evidence was also to the effect that plaintiff did not fall at the place where she said she did, that is, where the above mentioned defect in the sidewalk was located, but that she fell approximately twenty feet west of that place when she stepped from the gutter onto the ice-covered sidewalk after crossing the street.
On this appeal plaintiff asserts that the trial court erred in admitting testimony of a general icy condition throughout the City of St. Louis and in permitting counsel to comment on it in oral argument. The rule is well established that 'A city is not required to remove snow and ice from its sidewalks where such condition is general throughout the city,' Walsh v. City of St. Louis, 346 Mo. 571, 142 S.W.2d 465, 466, and the city incurs no liability for injuries resulting from such condition, including injuries 'caused by a mere slippery condition of a sidewalk due to a smooth coating of ice or snow, * * * unless such condition was due to a preexisting defect in the sidewalk or to other negligence on the part of the municipality, * * *.' 63 C.J.S. Municipal Corporations Sec. 813a(2). See also Rice v. Kansas City, Mo.App., 16 S.W.2d 659; Wolf v. Kansas City, 296 Mo. 95, 246 S.W. 236; Luettecke v. City of St. Louis, 346 Mo. 168, 140 S.W.2d 45; Harding v. City of St. Joseph, 222 Mo.App. 749, 7 S.W.2d 707; McQuillin, Municipal Corporations, 3d ed., Sec. 54.84. It is true that plaintiff contended that she was injured by reason of stepping in a hole in the sidewalk, but the city was authorized to show its version of what occurred and what it contended was the cause of her injuries. One of the pleaded defenses of the City of St. Louis was that the injuries of plaintiff 'were the direct and proximate result of the icy condition of the sidewalk which was prevalent and existing generally throughout the City of St. Louis.' There was no motion to strike this allegation on the ground that even if true it would constitute no defense, and the issue of whether plaintiff fell 'simply and solely because of said sidewalk being coated and covered with ice and sleet, which was general and prevalent throughout the entire city' was submitted to the jury by Instruction No. 5. Plaintiff does not purport to challenge Instruction No. 5 for that reason, but she does attempt to challenge it for another and different reason. Under the city's theory of the case, whether or not there was a general icy condition throughout the city was material and relevant to its pleaded defense, and the city was entitled to produce evidence during the trial to establish that fact, and to comment during oral argument on the evidence pertaining thereto. For these reasons the general assertions by plaintiff in its brief that it was error to do so are without merit.
Plaintiff also asserts that it was reversible error for counsel for the city to mention on voir dire examination that thirty-three witnesses would be called to testify concerning the icy condition throughout the city. In the voir dire examination counsel for the city stated that Plaintiff then objected 'to bringing in thirty or thirty-five witnesses pertaining to the condition of the ice or snow * * * unless it was confined to 214 Bates Street, or in that vicinity.' No objection was made to the statement of counsel that the prospective witnesses were persons 'who slipped on the ice and fell.' Counsel for the city then stated that he would not read all the names of the prospective witnesses but would pick them from various parts of the city. Plaintiff's counsel said, however, that 'If he is going to read from a list, let's have the whole list,' and the entire list was read.
Plaintiff's objection was premised on the erroneous theory that the city was not entitled to show the general icy condition. It is true that on the voir dire examination there was no occasion for counsel of the city to be arguing his case and commenting on the expected proof, but plaintiff's objection did not go to those matters and the trial court was not called to rule thereon. In the argument in her brief to this court plaintiff cites and relies on Blackwell v. J. J. Newberry Co., Mo.App., 156 S.W.2d 14, and Trautloff v. Dannen Mills, Mo.App., 316 S.W.2d 866. Those cases did not involve a suit against a city wherein a pleaded defense was that plaintiff's injuries resulted from slipping on ice on a sidewalk when there was a general icy condition throughout the city. We find no matter presented on this appeal which occurred in the voir dire examination which requires reversal of this judgment.
The fourth point is that the trial court erred in permitting counsel for the city to argue that 'others who had fallen at different parts of the city did not make claims for personal injuries.' In oral argument counsel for the city commented on the testimony of three witnesses for the city. In referring to the testimony of Sergeant Ketcherside, a police officer, he said: No objection whatever was made to the above statements; in fact no objection was made to any part of the argument of counsel for the city. Certainly, upon request, plaintiff was entitled to have stricken out the comment that...
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