Clader v. City of Neosho

• Decision Date: 05 December 1946
• Docket Number: No. 6614.,6614.
• Citation: 198 S.W.2d 523
• Parties: CLADER v. CITY OF NEOSHO.
• Court: Missouri Court of Appeals

198 S.W.2d 523

CLADER v. CITY OF NEOSHO.

No. 6614.

Springfield Court of Appeals. Missouri.

December 5, 1946.

Rehearing Denied January 7, 1947.

Appeal from Circuit Court, Barry County; Emory E. Smith, Judge.

Action by Charlotte Clader against City of Neosho for personal injuries. From an adverse judgment, defendant appeals.

The case was retransferred by the Supreme Court, 193 S.W.2d 620, after previous transfers in 192 S.W.2d 508, and 192 S.W. 2d 511.

Judgment affirmed.

Ray England, City Atty., and Justin Ruark, both of Neosho, for appellant.

Wayne V. Slankard and Paul E. Carver, both of Neosho, for respondent.

FULBRIGHT, Presiding Judge.

This is an action to recover damages for injuries sustained by plaintiff on the 17th day of August, 1944, when she stepped into a hole in a sidewalk in the City of Neosho, Newton County, Missouri. Plaintiff's petition was in conventional form. Defendant's answer was a general denial coupled with a plea of contributory negligence. On a change of venue the cause was sent to Barry County where a trial by jury resulted in a verdict in favor of plaintiff for $5,000. Defendant, being unsuccessful in its motion for a new trial, duly appealed.

The evidence tends to show that plaintiff, a widow thirty years of age and having three children at the time of her injury, was earning approximately $35.00 per week as a cook at the Barn Cafe located northwest of the public square on West Coler Street. Mrs. Ada Watson, with whom plaintiff shared living quarters southeast of the public square, was also employed as a cook at the same cafe and was working with plaintiff on the night of the accident. On this particular night after the cafe closed at 12:00 o'clock midnight, plaintiff and Ada Watson, accompanied by Private Young, a patron of the cafe, started walking to their home by way of the public square where they intended to stop at another cafe and get some coffee. They walked east on Coler Street to Wood Street (which leads to the square), then turned south on the west side thereof walking on a brick sidewalk. They were proceeding in a normal and orderly manner when plaintiff suddenly stepped into a hole or depression in the sidewalk, immediately in front of the residence at 312 North Wood Street, causing her to fall thereby sustaining the injuries alleged. It was shown that Wood Street was heavily traveled by both vehicles and pedestrians; that there are many trees of medium and large size along the street and in the lawns on both sides and especially where the accident occurred; that the limbs extend out over the street and when in full foliage (as they were at the time of the accident) obstructed the illumination from the street lights at either end of the block, thereby making it very dark. At the point where plaintiff fell several bricks were out of the sidewalk and others were loose on the side next to the street, making a triangular hole six or seven inches deep and extending from one-third to one-half or more of the width of the sidewalk. It was shown that the sidewalk was approximately four feet in width and that the concrete curb at this point was badly broken. The defect in the sidewalk had existed for two months or longer and was immediately in front of the walk leading into the residence at 312 North Wood Street, known as the old Helsor property which is just north of and adjoining the Neosho Boarding House, both of which are owned by Homer Griffith and occupied by tenants.

Herman Cline, Sheriff of Newton County, testifying on behalf of plaintiff, stated that directly in front of this house (312 N. Wood Street) there is a three-cornered place (meaning the repaired place) on the east side of the sidewalk about four feet long and extending into the sidewalk about half way; that the west side of the walk touches the low retaining wall; that the dirt has been washed out between the sidewalk and the curb and at the point where the curb is broken it is lower than the sidewalk. He stated that he measured the distance from the defect in the sidewalk to the high school corner (Brook and Wood Streets) and found it to be 110 feet.

Tom Clark, an employee of Western Union, was called on behalf of plaintiff and stated that he had walked on Wood Street for forty years; that the trees, when in full foliage, makes almost a complete canopy over the street and obstructs the street light at the corner; that the defect in the sidewalk in the front of the Homer Griffith property had been there for two months or more; that there were several bricks missing, about the width of the steps that go into the property, and about half of the bricks were out next to the curb; that he sometimes got out in the gutter to keep from stumbling in this hole; that at times, in the month of August, at night, the light was so dim he had to walk in the gutter.

John Batton stated that he occupied the Griffith property at 312 N. Wood Street as a tenant; that at the time of the accident he heard someone crying or talking loud and he went out and found a lady hurt lying on the sidewalk in front of his house, groaning and crying; that some of the bricks got a little loose and the children would take them out and that this condition had existed two months or more. He stated that he believed it was possible for two people to walk there; that he had seen it so dark at this place one could not see the sidewalk when the moon wasn't up; that when his porch light was on "you could see the sidewalk if you looked good."

Mrs. Velma Lear, who lived at 312 N. Wood Street also, stated that she had lived there since the 9th of August, 1944; that the brick sidewalk along there was in bad condition. One whole side next to the slab was completely out directly in front of the walkway leading to the house; that some of the brick were completely gone and some were in the hole and that the defect had existed ever since she had lived there. She stated that there were many trees along there and in front of her house "was a very dark spot"; that shortly after midnight she heard someone crying. She and her husband went down and found plaintiff sitting flat on the sidewalk, "her back toward our apartment and her leg was slumped over in this hole. She was holding her leg about her knee and crying, apparently in a great deal of pain." She stated that she sat down on the foundation that was around the lawn and had Mrs. Clader lean back against her so that she could rest comfortably until the ambulance came. On cross-examination she stated that plaintiff and her companions were just as sober as "I am now"; that one could not see the sidewalk there until the cars cast their light thereon, and that the defect in the sidewalk was repaired about 10:00 A. M. August 17th, after the accident happened.

Mrs. Ina Elliott stated that she lived in the house just north of the Griffith property and had lived there about a month at the time of the accident. She stated that there was a hole in the sidewalk at the time they moved there and that it was there from that time until Mrs. Clader was injured; that the hole reached over half way across the sidewalk and was large enough that one had to walk against the wall to avoid it; that the brick were out; that she had seen it so dark at that place, at night, that one couldn't see the outline of the sidewalk; that the last time she had walked along there, before the hole was fixed, she was with her daughter; that her daughter walked ahead of her and she walked behind in order to avoid the defect in the sidewalk. She stated that she heard the injured woman crying and went out and found the woman had fallen and was lying on the sidewalk in the hole in front of the Griffith property, 312 N. Wood Street.

Plaintiff testified that she had been working as a cook at the Barn Cafe possibly a year or more prior to the accident, and had worked there on the night of August 16, 1944, up until the cafe closed at midnight; that Ada Watson had also worked on this particular night and when the cafe closed the two of them, together with Private Young, a patron with whom they were slightly acquainted, left and walked toward the public square; that as they were walking along on a brick sidewalk, on the west side of North Wood Street, plaintiff stepped into something in front of the Griffith property at 312 N. Wood Street; that as they proceeded toward the place of the accident she was on the inside, Private Young on the outside and Mrs. Watson in the middle, but that at the time the accident occurred Mrs. Watson was just a little ahead of plaintiff and Private Young; that when she fell to the ground her feet were in a hole in the sidewalk of broken brick and she then discovered her leg was broken. An ambulance was called and she was taken to the hospital where she remained from the 16th day of August, 1944, to the 1st day of October, 1944. She was then removed to the room she had previously been sharing with Mrs. Watson, her leg still in a cast, where Mrs. Watson gave her massages under the direction of the doctor, prepared her meals and cared for her until she was able to care for herself; and she told Mrs. Watson, at this time, that she would settle with her when she could. She stated that for approximately four months she could not work and during this time her suffering was very severe; that there is still occasional pain and her leg and ankle swells; that before her injury she worked nine hours a day at the Barn Cafe and at the time of the trial (March 27, 1945) she could only work part time — four hours a day; that she had difficulty in getting up and down steps and that there was a bulge in the front part of her leg. Plaintiff stated that she understood the Red Cross had paid $304 on her hospital bill in October, 1944, and that she had received a statement from the hospital for $382.50; that she had not been drinking and had never been along that walk before; that she didn't have weak ankles and had never fallen and...