Chaffin v. Kansas City, Mo.

• Decision Date: 02 March 1936
• Docket Number: No. 18511.,18511.
• Citation: 92 S.W.2d 917
• Parties: BERTHA CHAFFIN, RESPONDENT, v. KANSAS CITY, MISSOURI, APPELLANT.
• Court: Missouri Court of Appeals

92 S.W.2d 917

BERTHA CHAFFIN, RESPONDENT, v. KANSAS CITY, MISSOURI, APPELLANT.

No. 18511.

Kansas City Court of Appeals. Missouri.

March 2, 1936.

Appeal from Circuit Court of Jackson County. — Hon. Thomas J. Seehorn, Judge.

REVERSED AND REMANDED.

George Kingsley, City Counselor, James R. Sullivan and Arthur R. Wolfe for appellant.

Grover, Browne & Ennis for respondent.

REYNOLDS, J.

From an adverse judgment in the sum of $5000 in favor of the plaintiff in an action against defendant for personal injuries sustained by reason of alleged negligence of the defendant, the defendant, after unsuccessful motions for new trial and in arrest of judgment, prosecutes this appeal.

On December 22, 1932, the plaintiff, while walking north on the sidewalk on the east side of Pennsylvania Street in Kansas City, Missouri, at a point about 100 feet south of the intersection of said street with Seventeenth Street in said city, was caused to fall and injure herself by stepping on slippery ice and snow on the pavement, which fall and injuries she contends were caused by the negligence of defendant.

The particulars on which the charge of negligence upon the part of the defendant rests fully appear from plaintiff's petition which is here set out in full, omitting captions and signatures:

"Plaintiff states that the defendant is a municipal corporation organized and existing according to law.

"Plaintiff for her cause of action states that on the 22nd day of December, 1932, while she was walking on the regular sidewalk about one hundred feet south of 17th Street at the intersection of 17th and Penn Street she was negligently caused to fall and injure herself as hereinafter mentioned by stepping upon some (rough, uneven) slick and slippery ice and snow and other substances, the exact nature of which are not known to plaintiff at this time, causing her to slip, slide, stumble and fall.

"That the negligence of defendant consisted in this, that defendant knew or should have known by the exercise of ordinary care of said (rough, uneven) slick and slippery condition as aforementioned, and that said (rough, uneven) slick and slippery condition rendered said sidewalk at said time and place not reasonably safe for plaintiff and others using it, but (a) dangerous (obstruction), in (reasonable) time thereafter to have removed said (rough, uneven) slick and slippery snow, ice and other substances and otherwise remedied said condition and rendered said sidewalk reasonably safe for plaintiff and others using it prior to December 22, 1932, and have thereby avoided injury to plaintiff, but that defendant negligently and carelessly failed to exercise ordinary care when it knew or should have known of said condition and negligently failed to remove said (rough, uneven) slick and slippery substances (and dangerous obstruction) prior to December 22, 1932, and in consequence of said defendant's negligence as aforementioned, plaintiff was caused to fall and did fall as aforementioned to the sidewalk and street at said time and place injuring herself as follows:

"That her head, neck, back, shoulders, arms, spine, hips, legs and entire body and each of the bones, muscles, nerves, vessels and ligaments thereof were bruised, contused, twisted, stiffened, swollen, wrenched, displaced and lacerated; that each of her internal organs were bruised, contused, twisted, wrenched and displaced; that she suffered a severe and lasting shock to her nerves and nervous system; that she suffered and will continue to suffer physical pain and mental anguish therefrom; that she suffered a concussion of the brain, headaches and dizziness; (she suffered an inter-capsular fracture of the left femur); that each of her coccyx bones were bruised, contused, twisted, fractured, sprained and broken; that each of her sacroiliac joints were sprained, strained, twisted and displaced; that she lost sleep, weight, strength, color and ability to work and labor and earn her livelihood; and has become sick, sore, lame and disabled; that her left leg (and hip were) was broken above the knee and (shortened) stiffened and swollen (and the functions thereof impaired); that each of said injuries is permanent and lasting to her damage in the sum of $15,000.

"Plaintiff further alleges that notice was served upon the City as required by statute of this state, within ninety days after said occurrence, by being served upon the then acting mayor of Kansas City on the 17th day of March, 1933.

"Wherefore, plaintiff prays judgment against the defendant in the sum of $15,000 and her costs herein incurred."

The answer is a general denial, with which is coupled an affirmative plea of contributory negligence on plaintiff's part.

The reply is a general denial.

There is evidence tending to show that, during the early part of December, a heavy snow fell covering the streets of Kansas City, including the street upon which plaintiff fell, and that there was a period of stormy weather in which there was alternate thawing and freezing. Ice had formed upon the sidewalks. In places, it was rough and uneven (caused by people walking on the snow and by the snow freezing) and in other places slick, where the snow had melted and run over the sidewalk and frozen. Much of this ice and snow had melted and disappeared at the time of plaintiff's injuries; but there was evidence tending to show that some of it remained at that time upon the sidewalk upon which plaintiff was walking on Penn Street and that she stepped upon it and fell. There is no question raised, upon this appeal, but what the defendant had knowledge of such condition and had a reasonable time after knowledge within which to have remedied such condition before plaintiff was injured.

There is evidence in the record tending to show the nature and character and extent of the injuries received by plaintiff sufficiently supporting the allegations of her petition in such regard. There is no question raised, upon this appeal, as to the excessiveness of the verdict; and it is therefore unnecessary at this point to cover more fully the evidence as to such injuries.

Upon a trial of the cause before a jury, the defendant, at the close of plaintiff's case and again at the close of the whole evidence, requested instructions in the nature of demurrers, which were by the court denied. The cause being submitted to the jury, a verdict was returned for the plaintiff in the sum of $5,000, upon which verdict the judgment hereinbefore noted as appealed from was entered.

OPINION.

The first point made by defendant on this appeal relates to the refusal of the trial court to give its requested instructions in the nature of demurrers to the evidence.

1. The defendant contends that there was not sufficient competent evidence adduced on the trial in plaintiff's behalf to show that she was caused to fall by stepping on ice and snow at the time and the place that she fell and that it was error on the part of the trial court to refuse such instructions.

It contends that plaintiff's testimony and that of other witnesses in her behalf fail to show that there was any ice on the pavement where she stepped and fell and that it is a mere conjecture under the evidence to say that there was or that she was caused to fall by slipping on ice and snow at such place.

It is true that plaintiff did testify that she did not see the ice until after she fell and that she first became aware of the ice by feeling it after she was down. However, from her testimony, it is clear that the ice was there and that she stepped upon it and, it being slick, she slipped and fell.

Upon direct examination, she was asked certain questions, to which she made answer, as follows:

"Q. Mrs. Chaffin, please just tell the court and jury what happened to you as you walked along there? A. Well, I slipped on the ice and fell and broke my limb... .

"Q. Where was this ice where you slipped on it? A. It was on the east side of Penn.

"Q. You told me that. Where, with reference to this driveway of this house that is in plaintiff's Exhibits 2, 3, and 4? A. It was just off that driveway.

"Q. Which way off? A. It was north... .

"Q. Well, Mrs. Chaffin, did you see this place where you fell? As you fell could you tell it was ice? A. No, sir.

"Q. Why, Mrs. Chaffin? What was it that prevented you from seeing that? A. Well, it was the color of the sidewalk.

"Q. When did you see it as ice at first? A. Well, I felt it when I was down.

"Q. When you were lying down? A. When I was down.

"Q. Did you go clear down? A. Yes, sir."

Again, in cross-examination, plaintiff was asked certain questions to which she made answers, as follows:

"Q. At the time that you had your fall, it was raining, that is true, isn't it? A. Yes, sir.

"Q. And your accident happened about 3:30 in the afternoon? A. Yes, sir.

"Q. And you could see for quite some distance? A. Yes, sir.

"Q. And you say there was some ice on the sidewalk over there? A. Yes, sir.

"Q. Did you see the ice before you stepped onto it? A. No, sir.

"Q. Was the ice that you observed there — was it after you fell? A. I didn't see it until after I fell.

"Q. You were walking down what part of the sidewalk? A. On the east side of Pennsylvania... .

"Q. Were you walking an ordinary gait at the time? A. Yes, sir.

"Q. Or were you running to get out of the rain? A. Just an ordinary walk.

"Q. Just an ordinary walk, and where were you looking immediately before you stepped on to the ice? A. I was just watching my step.

"Q. And you mean to tell the jury that it being broad daylight and nothing to obstruct your view there, and you could see for some distance, that you couldn't see that ice? A. No, sir, I didn't see it.

"Q. Did you fall right after you got on to it? A. I just slipped right when I stepped on it... .

"Q. Now, the ice that you tell the jury about, was it smooth ice — a sheet of smooth ice or was it rough and uneven ice where people had walked along in it? A. It...