Capriglione v. Southwestern Bell Tel. Co.
| Decision Date | 09 March 1964 |
| Docket Number | No. 1,No. 49942,49942,1 |
| Citation | 376 S.W.2d 205 |
| Parties | Georgia CAPRIGLIONE, Respondent, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant |
| Court | Missouri Supreme Court |
John Mohler, Donald K. King, Wm. C. Sullivan, Leo E. Eickhoff, Jr., St. Louis, for defendant-appellant.
Paul H. Koenig, Roberts P. Elam, St. Louis, for plaintiff-respondent.
COIL, Commissioner.
Mrs. Capriglione sought $25,000 as damages for alleged personal injuries she sustained as the result of the averred negligence of Southwestern Bell Telephone Company, a corporation. We shall sometimes refer to the parties as they were designated in the trial court. A jury's verdict was for the defendant. The trial court granted plaintiff a new trial for the stated reason that the court erred in giving contributory negligence instruction 3-A. Defendant appealed from the new trial order and contends the trial court erred in refusing to direct a defendant's verdict at the close of all the evidence and in holding that instruction 3-A was erroneous. Inasmuch as we have determined, for reasons which will hereinafter appear, that the trial court did not err in granting a new trial for the giving of instruction 3-A, we first determine defendant's contention that plaintiff failed to make a submissible case.
In determining whether the trial court should have directed a verdict for defendant, we state the evidence from the standpoint most favorable to plaintiff, give her the benefit of all favorable inferences arising therefrom, and disregard defendant's evidence unless it aids plaintiff's case. Daniels v. Smith, Mo., 323 S.W.2d 705, 706. We bear in mind also that a jury 'may believe all of the testimony of any witness or none of it, or may accept it in part and reject it in part; just as the jury finds it to be true or false when considered in relation to the other testimony and the facts and circumstances in a case,' Burr v. Singh, 362 Mo. 692, 243 S.W.2d 295, 298[4, 5]; and that an issue is for the jury to decide unless the evidence and the reasonable favorable inferences therefrom 'are so strongly against plaintiff as to leave no room for reasonable minds to differ.' Nelson v. O'Leary, Mo., 291 S.W.2d 142, 147[2-4].
About 10:30 on a night in March, 1958, plaintiff fell when she came in contact with one of defendant's 40-feet long telephone poles which defendant had temporarily stored in a horizontal position in and upon plaintiff's side yard at the time and under the circumstances to be recited. Plaintiff, with her husband and their children, lived in a house on the north side of DeTonty Street in St. Louis. Adjacent to the west edge of plaintiff's yard was a north-south paved alley. At the time in question there was no access to the front of the house (a front porch was under construction). There was a sidewalk which ran from the east edge of the alley (at a place approximately even with the rear of the house) east to a rear entrance. About 4:30 in the afternoon of the day in question plaintiff, her husband and their children, and plaintiff's mother who was temporarily living with them, left the home on a shopping trip. They left by the rear door and went to their car parked in the alley directly west of the rear door and, on returning sometime after 9 p. m., the husband drove to the rear sidewalk where all alighted except plaintiff's husband who continued on southwardly to keep some other appointment. At the time of their return plaintiff saw no telephone pole in the yard. Neither plaintiff nor any member of her family had given permission concerning and had received no notice from defendant that it had placed a telephone pole in plaintiff's yard. Plaintiff, the children and the grandmother went into the house via the rear entrance.
Plaintiff had promised them some ice cream upon their return from the shopping trip and left the house to purchase it and to mail some letters. To reach the drugstore, she went eastwardly on the walk which went from the alley on the west to the northeast corner of the house, turned to her right or south, and walked on a sidewalk which ran along the east edge of their property to the public sidewalk, and then east on DeTonty. She returned to the rear entrance of her home by the same route. When at her door she realized she had forgotten to mail the letters. The closest mailbox was located on DeTonty west of her home. She thereupon angled southwestwardly across the side yard. As she walked she fell over something 'that was real long and dark.' She didn't know what it was at the time but she 'felt numb [and] shocked'--she was nine months pregnant at the time. Upon arising, she proceeded west on DeTonty a short distance to the home of some friends, the Cases, who assisted her into their apartment and tried to get in touch with her husband. She told Mr. Case that she 'fell over something in my back yard.' There was dirt on the front of her clothing. Mr. Case, after trying to reach plaintiff's husband, went to the yard to attempt to determine what had caused plaintiff to fall and discovered the telephone pole, whereupon he called the defendant and reported the incident.
Plaintiff testified that at the time she fell it was dark, 'you couldn't see anything'; that there were no lights burning on the west side of her house; and that the street lights did not appreciably light the area in which the telephone pole was located. On cross-examination, defendant's counsel had plaintiff trace the route she attempted to traverse on her proposed trip to the mailbox and the telephone pole was squarely in her path.
Defendant's evidence showed that on the day in question one of its crews was to replace two existing wooden telephone poles with longer ones; that one of the locations was at the edge of the same alley that was adjacent to plaintiff's property but about one-half block south of DeTonty; that the other location was at the east edge of the alley adjacent to plaintiff's yard; that the crew finished installing the new pole south of DeTonty and by that time it was too late to complete the other installation prior to quitting time; that defendant's crew, in accordance with instructions, laid the pole in plaintiff's side yard and staked it to prevent its rolling. The west side of the pole was about seven feet east of the east edge of the alley, the south end was about ten or twleve feet north of the north edge of the sidewalk running in front of plaintiff's house, and its north end was forty feet directly north. No member of the crew nor anyone else on behalf of defendant either obtained permission from plaintiff or any other member of the family to place the pole in the yard or informed plaintiff or any member of her family either by word of mouth or by any other method that the pole had been placed there during the family's absence.
Defendant conte...
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