Carvin v. City of St. Louis

• Decision Date: 23 May 1899
• Citation: 52 S.W. 210,151 Mo. 334
• Parties: CARVIN v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

52 S.W. 210

151 Mo. 334

CARVIN v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri, Division No. 2.

May 23, 1899.

MUNICIPAL CORPORATIONS — DEFECTIVE SIDEWALKS — NEGLIGENCE.

1. A water meter placed in a square box, covered with an iron lid, and set in a square flange level with the pavement, was placed in the sidewalk in front of a manufacturing establishment, with the consent of the city. Plaintiff, a pedestrian, was injured by stepping on the cover, and the sliding of it to one side, thereby letting her foot drop in the hole, and sought to hold the city, on the ground that the sidewalk into which the meter was constructed became defective, and so remained, after constructive notice to the city. Plaintiff testified that the meter was apparently in the same condition other meters were, which was about level with the sidewalks, but that she never noticed them, and that she did not notice the covering before she stepped on it, and, in striking her foot against it, it was raised. Another witness testified that, some weeks before the accident, he noticed that the cover seemed kind of up; that he stubbed his toe against it, and walked around it; that one side was a half to three-eighths of an inch higher than the flange. A third witness stated that there was an eighth or a sixteenth of an inch of dirt under the flange at the time of the accident. The petition did not allege that the injury was caused by the cover of the meter being above the sidewalk. Held, that the defect was a hidden one, and it is not shown to have existed for a sufficient length of time before the injury to justify the assumption that the city knew of it, so as to be liable for the injury.

2. In the absence of evidence that a water meter box in the sidewalk was not in a reasonably safe condition, a person injured by stepping on the cover of the box, and the sliding of it to one side, thereby letting her foot drop into the hole, cannot recover from the owner.

Appeal from St. Louis circuit court; John M. Wood, Judge.

Action by Fannie Carvin against the Claes & Lehnbeuter Manufacturing Company and the city of St. Louis. From a judgment for plaintiff, defendants separately appeal. Reversed.

Lubke & Muench, for appellant Claes & Lehnbeuter Mfg. Co. B. Schnurmacher and Chas. C. Allen, for appellant city of St. Louis. Geo. Bullock and A. R. Taylor, for respondent.

BURGESS, J.

This is an action for damages in the amount of $15,000 for personal injuries alleged to have been sustained by plaintiff on August 12, 1894, by falling into a water-meter box on the south side of Washington avenue, city of St. Louis, about 20 feet east of the east line of Twenty-Second street, in front of the premises of the Claes & Lehnbeuter Manufacturing Company. The petition alleges that at the time of the accident, and for some time previous thereto, the cover of the meter was without fastenings, was loose, and liable to become displaced and removed, and the opening to become exposed, by reason of the accumulation of dirt and débris in the flanges and under said cover. As to the city of St. Louis, the petition alleges that, by its proper officers in charge of keeping its streets and sidewalks in repair, it had notice, or by the exercise of ordinary care would have had notice, of the dangerous condition of the covering of the water meter, before plaintiff received the injuries complained of, in time to have repaired the same and to have averted the injury. As to the manufacturing company, the petition alleges that it was negligent in maintaining said cover in said defective condition; and that, by reason of said defective condition of said cover, plaintiff, on the 12th day of August, 1894, while passing over said sidewalk, stepped upon said cover, when it gave way, and plaintiff's foot and leg fell into said opening, whereby she was greatly and permanently injured upon her leg, knee, hip, and back and sustained a great shock to her nervous system. Defendants answered separately, denying all allegations in the petition, and alleging contributory negligence on the part of plaintiff. The case was tried to the court and jury. There was a verdict in favor of plaintiff, assessing her damage at $1,800, upon which judgment was rendered. After unsuccessful motion by each of the defendants for a new trial, they prosecute separate appeals.

The manufacturing company, on application to the defendant city, in June, 1891, was permitted to sink in the sidewalk, in front of its business establishment, a water meter, for the purpose of measuring the consumption of city water in its factory. The meter is placed in a square box, and is covered with an iron lid, set in a square flange, on a level with the surface of the pavement. This lid is about 20 inches square, is made of iron, and weighs about 44 pounds. The flange in which it rests is about one inch wide. About 2 o'clock in the afternoon of the day of the accident, plaintiff was walking along on the sidewalk on Washington avenue, near the southeast corner of said street and Twenty-Second street, when she stepped with her right foot upon the meter cover, which slipped, and her right foot and limb went into the opening, in consequence of which her limb was severely bruised, and her back injured.

She testified, as a witness in her own behalf, substantially as follows: "Am 32 years old, and prior to August 12, 1894, was a dressmaker. Have resided in the city of St. Louis five years. On August 12th, lived at 2206 Locust street, and was in good health. On August 12, 1894, I left my house, and went north on Twenty-Second street to Washington avenue, in order to take the car going east on the avenue. Having reached Twenty-Second and Washington avenue, I crossed Twenty-Second street, and went over to the southeast corner of Washington avenue and Twenty-Second street, and, a car having just passed, I knew I would have to wait a minute or two. Therefore I started down the pavement to wait for the car, but before I reached the pavement I stepped on this flange, which slid out, and I fell. When I say the `flange,' I mean the water-meter cover, which was a square piece of iron about 18 or 20 inches in size. When I stepped on it, it slid down — that is, it slipped off — towards the west. I fell into the hole as far as I could go with one limb. I mean the hole where the cover had been. As near as I can say, the cover was 18 inches square, and it was my right limb that went into the hole. As I fell, I struck my back against the edge of the iron. The lid or cover slipped entirely off. The sidewalk there is paved with stone or granitoid, and has a smooth surface. I cannot say whether I stepped on the flange or against it. I think I stepped on the edge of the iron. I know the covering was there, and I never noticed it was in a dangerous condition. The sidewalk of which I have been speaking is the sidewalk on Washington avenue, which is, and at that time was, a public street. When my limb went down, I fell a little towards the right, the east of the covering. It was the right side of my back which came into contact with the iron. My knee was badly bruised and skinned, and also my back and hip, just above the hip between the back. The back was hurt a little to the right of the center. I was helped up by a gentleman who crossed the street, but I was able to walk, and when the car came I took it, and then returned home. The next morning Dr. Edmunds called on me. That evening of the accident I had no surgeon. The accident happened about 2 o'clock in the afternoon. The day was bright and warm. I was home in less than an hour thereafter. I did not feel badly until the next morning, or rather late the next night. I was compelled to go to bed, and was in bed six weeks. After that I could move around the room with crutches, but could not go out of the house. I have not been able to work since at all. My limb is sore all the time at the knee. The injury is from the joint and on the right side of it. The pain from the hip and back affect my head, so that I cannot use my eyes to read or sew. It is so severe in my back and head. Dr. Edmunds treated me for six months, and after that Dr. Mooney, and I am still under his care. I am never without pain, and never rest well. If I read or sew, the pain in my head is so great I cannot use my eyes, and it makes my head ache worse. I am not able to do dressmaking work or housework of any kind. My average earnings were $20 a week." On cross-examination she said: "Am a married woman. My husband's name is Herbert W. Carvin, but we are not living together. On this particular day I had started to go to the hospital to see a sick friend. It was a Sunday afternoon, about 2 o'clock. The hospital I refer to is the Rebecca Hospital, on South Grand avenue. I intended going east on Washington avenue, and transferring at Eighteenth street. I went north on the west side of Twenty-Second street, and when I reached Washington avenue I crossed over to the east side of Twenty-Second street. I started to the curb of the sidewalk, but did not reach it. I was starting to the other side of the sidewalk on Washington avenue, and along the east side of Twenty-Second street, and while I was engaged in that trip I stepped right on the cover. I was endeavoring to get to the shade of the telegraph pole on the edge of the curb, about 15 or 20 feet from Twenty-Second street, and just at the corner of the building where the cars stop. I endeavored to get on the east side of the telegraph pole. There was shade on the sidewalk near the pole. I had not reached the pole at the time I was hurt. I have no doubt about the...