Butler v. City of University City

• Decision Date: 05 January 1943
• Docket Number: No. 26178.,26178.
• Parties: BUTLER v. CITY OF UNIVERSITY CITY.
• Court: Missouri Court of Appeals

167 S.W.2d 442

BUTLER v. CITY OF UNIVERSITY CITY.

No. 26178.

St. Louis Court of Appeals. Missouri.

January 5, 1943.

Rehearing Denied January 22, 1943.

Appeal from Circuit Court, St. Louis County; Peter T. Barrett, Judge.

"Not to be reported in State Reports."

Action by Margie Butler against City of University City, Missouri, a municipal corporation, for damages for personal injuries sustained by plaintiff when she fell upon a defective sidewalk in defendant city. Judgment for plaintiff, and defendant appeals.

Affirmed.

Marvin E. Boisseau, of St. Louis, for appellant.

John A. Nolan, of Clayton, and Alvin Goldman, of St. Louis, for respondent.

ANDERSON, Judge.

This is an action for damages for personal injuries sustained by plaintiff when she fell upon a defective sidewalk in University City, Missouri. She recovered a judgment below, and defendant appealed, contending, first, that its requested instruction in the nature of a demurrer to the evidence should have been sustained; and, second, that one of plaintiff's given instructions contained error.

The defective sidewalk was in the 6600 block on the south side of Delmar avenue, an east and west street, and approximately opposite the corner where Kingsland avenue enters Delmar boulevard, Kingsland being a north and south street which enters Delmar from the north at this point and then jogs about ninety feet before it continues south. The defect consisted of a cracked and broken portion of concrete adjoining the curb and just to the east of an electric light post. A patch, approximately three feet square, which had been made in the sidewalk at this point, had sunk below the general level of the sidewalk, causing an abrupt vertical separation of the east end of the patch from the sidewalk, and forming a depression of from three-fourths of an inch to an inch and a half, the greatest depth of an inch and a half being about ten inches from the curb. This point was a regular bus stop, and passengers were discharged either onto the patch or immediately east of it. On the street to the west of the patch the city had painted markers for pedestrians who desired to cross to the north side of Delmar.

As grounds of negligence, plaintiff charged the negligent maintenance of said walk and failure to repair same when defendant knew or by the exercise of reasonable care should have known of such defective and dangerous condition.

Plaintiff testified that for seven months prior to July 25, 1940, the date of the accident, she had worked for Mr. Louis Hussman at 7510 Washington boulevard. She lived at 1942 Papin street, and each day went back and forth from her home to her place of work. In the morning she would ride a westbound Delmar streetcar to Kingsland avenue, board a westbound bus on the north side of Delmar, and ride to Hanley road; in the evening she would board an eastbound bus at Hanley road, get off at the bus stop on the south side of Delmar immediately adjacent to the patched place in the sidewalk hereinbefore mentioned, and would then walk across the street to the north side of Delmar and board an eastbound Delmar car. At this intersection eastbound streetcars entered Delmar from Kingsland avenue, and passengers boarded the cars as the cars stood facing south on Kingsland avenue prior to turning east into Delmar avenue. Plaintiff had transferred from the bus to the streetcar at this point every day during the seven months she worked at the Hussman home.

On the evening in question she reached the transfer corner at about 9 p. m. She was the only passenger getting off the bus and she left by the front exit. At the time the bus was close to the curb. She stepped from the bus onto the sidewalk, turned to her right, and walked on the sidewalk alongside the bus toward its rear and toward the pedestrian's crossing, intending to cross Delmar as usual to board an eastbound streetcar. When she arrived at about the rear end of the bus, she stepped into the depression or hole hereinbefore mentioned, and fell into the street, sustaining the injuries for which she sought recovery.

At the trial she testified that just prior to the accident she was not looking down to see where she was stepping, but was looking across the street to see if a streetcar was coming. She also testified that several weeks prior to July 25, 1940, she had observed the condition of the sidewalk at this point, and she had seen it practically every time she got off of the bus at that stop; that the sidewalk contained a bad place which looked as though the concrete had been broken; that she did not see it the night she fell because it was dark.

The evidence showed that a light fixture containing a 400-Watt electric light was fastened to a trolley pole, adjacent to the patched place in question, but plaintiff testified that the light was not burning on the night she received her injuries. Immediately across the street, which was fifty-four feet wide, another trolley pole contained a 400-Watt electric light, and all the trolley poles on both sides of Delmar avenue, for several blocks east and for three hundred feet west, contained 400-Watt lights. These lights were from ninety to one hundred fifteen feet apart. A well lighted drug store was located immediately across the street from the place where plaintiff fell.

The intersection in question was one of the busiest corners in the city, and people were getting on and off of buses at the place in question at all times.

Upon the foregoing evidence, defendant contends in its first assignment of error that its requested instruction in the nature of a demurrer to the evidence should have been given, as the evidence failed to show any negligence on the part of the defendant city.

Our problem is to ascertain whether a jury could have reasonably found that the act of defendant, in maintaining the sidewalk in the condition it was in as shown by the evidence, taken in its most favorable aspect to plaintiff's case, subjected persons lawfully using the sidewalk to an unreasonable risk of bodily harm, which risk defendant should have realized.

In determining this question, no hard and fast rule can be applied. Each case must stand or fall on its own facts. A jury might reasonably find that defendant was negligent in permitting a one and a half inch hole to remain in a sidewalk at one location and was not negligent in permitting it to exist at another, depending upon the surrounding circumstances. The facts in the case at bar show that the hole or depression was at one of the busiest corners of the city, adjacent to a bus stop, and at a point where persons transferring from eastbound buses to eastbound streetcars had to cross the street; that the defect in the sidewalk was between the place where buses usually discharged passengers and the place provided by the city for pedestrians to cross the street; that bus passengers who transferred at this point would in all probability pass over the defective portion of the sidewalk. Defendant either knew or should have known these facts. Defendant should also be charged with knowledge of the usual and ordinary peculiarities of human nature and should be held to realize that ordinarily prudent persons will allow their attention to be diverted by circumstances which concern their legitimate interests. Thus, defendant should know that a person alighting from a bus on the south side of Delmar avenue, intending to board a streetcar on the north side of the street, would in all likelihood focus his main attention across the street in an endeavor to ascertain if an eastbound streetcar was in the neighborhood, and would pay little attention to the sidewalk immediately in front of him.

In view of all the facts and circumstances, we believe that a case was made for the jury on the issue of defendant's negligence. Lithegner v. City of St. Louis, Mo.App., 125 S.W.2d 925; Neagle v. City of Edina, Mo.App., 53 S.W.2d 1077

In support of his contention, defendant has cited the case of Lundahl v. Kansas City, Mo.App., 209 S.W. 564, in which case a nightwatchman in a residence district was injured as a result of falling over a raised place in a sidewalk. The walk was laid in connected 6-foot square blocks. The defect consisted in an obstruction caused by one block having sunk two to three inches below the next block with which it had been connected on a level. The court held that a case was made for the jury, but Ellison, J., who wrote the opinion, stated that it was a border line case. From that language, the appellant herein argues that we should hold that a depression or hole measuring less than two inches should fall on the nonliability side of the line. To this we cannot agree. We do not believe that liability in such a case is a matter of inches, and we are reluctant to say to an injured person that he missed going to the jury by one-half inch, when from all the facts and circumstances a jury might reasonably find that the action of the defendant in allowing the hole to exist, whatever its measurements, was not up to the standard of conduct expected of an ordinarily prudent person. Furthermore, this defect was not limited to a mere hole one and a half inches deep. The photographs of the patched place in question, which were introduced in evidence, show that the entire patch was rough and uneven, and that the sidewalk where the patch had broken off was jagged and irregular. The facts present a case more nearly similar to Neagle v. City of Edina, Mo.App., 53 S. W.2d 1077, than to the one relied upon by appellant herein. In that case the appellant made the same contention as is made here, but we rejected it in view of the general condition of the sidewalk in question.

Defendant has also cited the case of Maxwell v. Kansas City, 227 Mo.App. 234, 52 S.W.2d 487. In that case one of the sections of a concrete sidewalk was slightly elevated at one corner above the level of an adjoining section, the elevation being caused by the...