Callaway v. Newman Mercantile Co.

• Decision Date: 24 November 1928
• Docket Number: No. 26829.,26829.
• Citation: 12 S.W.2d 491
• Parties: CALLAWAY v. NEWMAN MERCANTILE CO.
• Court: Missouri Supreme Court

12 S.W.2d 491

CALLAWAY v. NEWMAN MERCANTILE CO.

No. 26829.

Supreme Court of Missouri, in Banc.

November 24, 1928.

Motion for Rehearing Overruled December 31, 1928.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by Fannie Callaway against the Newman Mercantile Company. Verdict directed for defendant, and from judgment refusing to set aside involuntary nonsuit, plaintiff appeals. Affirmed.

Frank H. Lee and R. A. Pearson, both of Joplin, for appellant.

Haywood Scott and Ray Bond, both of Joplin, for respondent.

SEDDON, C.

Plaintiff sued defendant corporation to recover damages in the sum of $15,000 for personal injuries alleged to have been suffered by her in a fall upon a sidewalk in the city of Joplin, which defendant is charged with having negligently permitted to fall into a state of disrepair. At the conclusion of plaintiff's evidence, the trial court, at the request of defendant, gave to the jury a peremptory instruction to return a verdict for defendant, whereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside, and judgment was entered in favor of defendant. After timely, but unsuccessful, procedural steps to set aside the involuntary nonsuit and the judgment thereon, plaintiff was allowed an appeal to this court from the judgment so entered.

The defendant was the lessee, tenant, and occupant of a business building, situate on the southwest corner of Main and Sixth streets in the city of Joplin, where it conducted a large department store. The building in question was constructed and is owned by another corporation, the Newman Realty Company, which latter corporation rented or leased said building and premises to defendant under a month to month tenancy. The two corporations have different stockholders, but the majority of the capital stock of the realty company is owned and held by individual stockholders of the merchantile company, and vice versa. The building has a frontage of approximately 100 feet on both Main and Sixth streets, and extends five stories above the level of said streets, with a basement below the level of the streets.

The evidence of plaintiff tends to show that the outside, or east, wall of the building in question is located about 12 feet, 10¾ inches from the west curb line of Main street; that the sidewalk width on the west side of Main street is 10 feet, 1 inch; and that the east wall of the building is located 33¾ inches west from the west line of dedicated Main street, or the east property line abutting said street. In other words, the distance between the east wall of the building and the west curb line of Main street is 12 feet, 10¾ inches, and the east 10 feet, 1 inch of said space lies within the street lines of dedicated Main street, while the west 33¾ inches of said space is located within the property line of the Newman Realty Company. The erection of the said building was completed in October or November, 1910. The Main street sidewalk on the east side of said building was constructed concurrently with the erection of the building, and by the building contractor, with a full width of 12 feet, 10¾ inches, and extending 100 feet, north and south, along the east, or Main street, frontage of the building. Plaintiff claims to have been injured upon this sidewalk on November 20, 1923, or about 13 years after the completion of said sidewalk. One of plaintiff's witnesses, the city engineer of Joplin, testified that "during all that time, the sidewalk has been used by the public as a sidewalk; no dividing line at this place 33¾ inches from the building; nothing visible to indicate there is a line to cross; the entire width, 12 feet, 10¾ inches sidewalk, has all the time been open to, and used by, the public as a sidewalk." The uncontradicted testimony of other witnesses is to the same effect, so that it apparently stands conceded that the entire width of 12 feet, 10¾ inches has been continuously used by the public as a sidewalk since its completion in 1910.

The evidence further shows that, in the construction of the building, the basement was extended easterly and outwardly from the east main wall of the building and across the east property line, so as to extend some 5 or 6 feet over the west line of dedicated Main street. In order to give light into the basement, beneath the sidewalk, the sidewalk was constructed according to a plan or system, known as the bar-lock lighting system, consisting of a steel frame, supported by pilasters, in which frame rows, or series, of glass prisms are set, at regular intervals, and grouted with cement to hold the prisms firmly in place. After such construction, the sidewalk presented a smooth, level surface. The first series, or row, of glass prisms was distant about 4 or 5 inches from the east main wall of the building, and the several successive rows of prisms extended outwardly from the east main wall of the building about 8 feet, or approximately three-fourths of the entire width of the sidewalk, the balance of which width consisted of solid concrete construction. The glass prisms were of a uniform size, each being about 4 inches square.

According to her testimony, plaintiff was walking south along the aforesaid sidewalk about 10:30 or 11 o'clock on the morning of November 20, 1923. She had paused to mail a letter in a street box near the curb, and had turned toward a display window in defendant's department store, and had taken three or four steps when, according to her testimony, the heel of her shoe was caught in a hole in the sidewalk, occasioned by one of the glass prisms having been broken out of the frame of the sidewalk. She was carrying several parcels at the time, and the manner in which the heel of her shoe was caught caused her to lose her balance and to fall upon the sidewalk, thereby wrenching and straining her body. Plaintiff testified that her "best estimation would be that hole was about two, or two and a half, feet from the show window; the mail box is just on the outside of the walk just south of the east entrance; I would judge I went about four and a half, five or six feet, somewhere in that neighborhood, before I fell."

Witnesses on behalf of plaintiff testified that, at different times and on different occasions, they saw holes in the sidewalk where glass prisms had been broken from the sidewalk and had not been replaced. The composite testimony of such witnesses respecting the condition of the sidewalk may be stated as follows: "Well, it was bad—cracked along there—the vibration of that walk would break the glass and crack them and fall down through; crack on the underneath side and keep dropping down so they have nothing but a shell on top, and about the time you would step on it, it would go through; well, there is glass out all along on the east side; they would repair it off and on when it would cave out and a hole came in; they would drop another one in, in a day or two; some holes were in there for two weeks; there have been holes there for two weeks with boards laid over them; sometimes the boards were on them and sometimes off of them; there were holes along there all the time; don't remember any particular glass being out there in November, 1923; sometimes it was broken out and sometimes they have got it fixed, the glass; it was in bad condition; I have seen them out all around the building; I am not attempting to tell the jury I saw glass out there at any particular time; I have seen glass out pretty near every time I passed there; I didn't mean glass was left out there all around the building at one time; I meant I have seen glass out at different times in different places; I have noticed there was glass broken out all around there and men were out there working on it putting them in; I don't know whether there was any glass out where she fell; I have seen glass out all around the walk, at different times and different places have seen them out and men working on them; they just put in new glass was all I have seen when they become worn; I couldn't say as to any particular place; just at different places; I couldn't pick out the spots; don't know how soon they were put back; most all of the time some of those glasses would be broken out there; there were holes open for a year or two, I don't know just how long they were open, different glasses broken out there, at different times; don't mean to state just what glasses were out or what length of time they were out; don't know how quickly they repaired those glasses; I couldn't tell what day they were gone or anything like that; I have seen the same hole on two different days that I know of, see a hole today and probably the same hole tomorrow; there were holes from time to time, different holes."

Only one witness undertook to testify respecting the condition of the sidewalk at the precise time and place of plaintiff's alleged fall. He testified:

"I didn't see her fall, but I saw her just as she got up; she was yet in a stooping position, and that is just about all I saw of it; I was in a hurry and I went on; I saw her just as she got up; I went down the sidewalk just an hour or two before.

"Q. What did you see as to the conditions there, of the condition of the glass in the walk, at that point? A. I will say there was several of them out; not only at that place but all the way along; I noticed them the next day after she fell; why, there were holes, that is what I mean; as well as I now recollect, she was somewhere probably a little south of the mail box, somewhere about the show window."

On cross-examination, the witness testified: "I didn't see her fall; all I know is that at different times I have seen holes in the sidewalk in different places, as I have described; where she was, it would be a little bit south and west of the mail box, I suppose five or six or seven feet; she was right up at the show window when I saw her; it was south of the entrance at the show window; she was...