Cline v. City of St. Joseph

• Decision Date: 07 January 1952
• Docket Number: No. 21605,21605
• Citation: 245 S.W.2d 695
• Parties: CLINE v. CITY OF ST. JOSEPH.
• Court: Missouri Court of Appeals

Page 695

245 S.W.2d 695

CLINE v. CITY OF ST. JOSEPH.

No. 21605.

Kansas City Court of Appeals, Missouri.

Jan. 7, 1952.

Whitney W. Potter, City Counselor, Francis A. Pickle, Joseph L. Flynn, Asst. City Counselors, St. Joseph, for appellant.

Wm. Orr Sawyers, James P. Hull and William C. Cole, St. Joseph, for respondent.

BOUR, Commissioner.

The plaintiff, Mrs. Lucy Cline, while walking on a public sidewalk in St. Joseph, Missouri, stepped into a hole in the sidewalk, fell, and was injured. She brought this action against the city to recover damages for her injuries, and obtained a verdict and judgment for $3,500. Defendant appealed.

No point is made concerning the sufficiency of the pleadings, and defendant does not contend that proper notice of the accident was not given, or that no case was made for the jury on the issue of the city's negligence. Defendant relies upon the following points: (1) that the court erred in overruling its motion for a directed verdict at the close of the whole case, because the evidence showed that plaintiff was guilty of contributory negligence as a matter of law; (2) that the evidence was not sufficient to support the verdict; and (3) that the verdict was so excessive as to indicate bias and prejudice on the part of the jury. We will consider these points in the order mentioned.

The evidence showed that Seventh street is a north and south street and that Faraon street and Jules street run east and west intersecting Seventh street. Jules street is the next street south of Faraon street. The sidewalk in question is in the 300 block on the east side of Seventh street and extends from the south curb line of Faraon street to the north curb line of Jules street. It is a concrete sidewalk about 12 feet wide. The defect in the sidewalk was about 9 1/2 feet north of the north curb line of Jules street and 9 feet east of the east curb line of Seventh street; which means that it was near the northeast corner of Seventh street and Jules street. The testimony and the pictures introduced in evidence showed that the defect consisted of a circular hole about 12 inches in diameter. Several witnesses for plaintiff testified as to the depth of the hole, their estimates varying from 'one inch, more or less' to 3 1/2 inches. Plaintiff testified that she looked at the hole immediately after she fell and it was 'almost a foot each way' and 2 1/2 to 3 inches deep. It was shown that the defect had existed for some months prior to the accident. One witness said seven months; one said eight or nine months; and another ten months.

On the day of the accident a construction company was putting an asphalt surface on that part of Seventh street between Faraon street and Jules street. James Walker, an employee of the construction company, testified as a witness for plaintiff that a barrier had been erected across Seventh street near the intersection of Seventh street and Jules street and 'about even with what would be the north curb line of Jules street if it were extended across 7th'; that just before plaintiff fell on the sidewalk he was directing traffic at the intersection; and continued: 'There was a truckload of asphalt coming up 7th * * * and I swung the barricade on the east side of 7th to let the truck in and stopped the traffic going east and west--both ways--so the truck could come on through. * * * And when I swung the barricade back I seen her step in the hole and fall.'

Plaintiff was injured on July 30, 1948, between 4:00 and 5:00 o'clock in the afternoon, while walking south on the sidewalk toward the intersection of Seventh street and Jules street. Plaintiff testified that she and her husband had lived at 610 North Seventh street since 1942; that in going from their home to the business district it was their practice to walk west to Sixth street, then turn south on that street, but that on the afternoon in question she walked south on the east side of Seventh street bacause her destination was the office of an insurance company located on the east side of Seventh street and south of Jules street. She further testified:

'Q. How long in months prior to July 30 would you say that you had last been down that street? * * * A. Oh, it had been a year, maybe, or 8 or 10 months anyhow. * * *

'Q. Had you ever seen this hole before that time when you fell in it? A. No, sir, I never had.'

Plaintiff, in describing her actions immediately before and at the time of the accident, testified as follows:

'Q. Was there any repair work going on on 7th? A. Yes, there was, but I didn't pay any attention to it until I got almost to the Church. I was just walking along normally and I noticed they were resurfacing the street. * * * I was on the east side of the street, and I was walking along * * * and I noticed the traffic was awful heavy.

'Q. Along where? A. On Jule street. And I seen that it was blocked off on 7th Street. I wasn't looking down at my feet. * * * And I watched this truck to see when I could get a chance to cross. I knew there was a stop sign on 6th and Jule and I thought if I could get a chance to see it come on I could get a chance to cross. There were two cars passed when I was looking and just as I started to turn my head to look west I seen this fellow standing in the middle of the street.

'Q. Which fellow? A. This Mr. Walker. * * * He didn't make any signals or anything but he was standing there and just as I turned my head to look I stepped in this hole. * * * As I said, I was watching the traffic and I just stepped in it. I never seen the hole before. * * * I went clear down. I was laying on my side. * * *

'Q. Which foot was it went into the hole? A. My right foot. * * *

'Q. Did you see this hole prior to the time that you fell in it? A. I didn't.'

Plaintiff testified on cross-examination:

'Q. What were you looking at as you walked toward 7th and Jule? A. They were working on that street I noticed after I got about half way between Faraon and Jule.

'Q. Were you watching them work? A. No, I wasn't. It didn't interest me at all. * * *

'Q. What were you watching? A. I was looking out for traffic when I got there. * * *

'Q. Nevertheless, you didn't see this hole until after you fell? A. No, sir, I didn't. * * *

'Q. When you had your eyes to the west there looking at traffic or saw this other man there, that is when you stepped into the hole? A. Yes, sir. * * *

'Q. You didn't look where you were going? A. No. I wasn't look where I was going because I was watching the traffic. * * *

'Q. That particular place is north of what would be the north sidewalk of Jule, isn't it? A. Yes, sir.

'Q. That is quite a wide sidewalk, the Jule street sidewalk on the north? A. Yes, it is wide. I never paid any particular attention to any of the sidewalks.' Plaintiff further testified on cross-examination that the day was clear and that there was nothing to obstruct her view as she walked south toward Jules street.

Defendant contends that plaintiff was guilty of contributory negligence as a matter of law because the evidence shows 'that although the hole could have been seen for a distance of 55 paces (121 feet and approximately a half to three quarters of a block to the north, that nevertheless she failed to see it and stepped into it'; that 'she didn't look for approximately one hundred and twenty-one feet, fifty-five paces, from the point by the steps of the minister's home, where the hole could be seen, up to the place where she fell and that the hole was an obvious defect, plainly seen in the sidewalk.' In support of this argument, defendant emphasizes certain testimony of two witnesses for plaintiff; namely, Mrs. Frank O' Neal and Fred Porter. The testimony in question was elicited on cross-examination. Defendant also relies upon the testimony of its own witness, the city engineer. We have not included any of this testimony in our statement of the evidence, as it does not aid plaintiff's case. For the purpose of determining the issue presented, we must disregard defendant's evidence, unless it aids the plaintiff's case, and consider only the evidence most favorable to plaintiff and the most favorable inferences arising therefrom. Thempson v. Byers Transp. Co., Mo.Sup., 239 S.W.2d 498, 500; Becker v. Aschen, 344 Mo. 1107, 1112, 131 S.W.2d 533, 536. Furthermore, the court may direct a verdict for defendant only when the facts in evidence and the legitimate inferences drawn therefrom are so strongly against the plaintiff as to leave no room for reasonable minds to differ. Trower v. Missouri-Kansas-Texas Railroad Co., 347 Mo. 900, 908, 149 S.W.2d 792, 795.

The standard of conduct to which a plaintiff must conform for his own protection and in order that he may not be guilty of contributory negligence as a matter of law, like the standard to which a defendant must conform for the protection of the plaintiff or the class to which he belongs, is based upon the conduct of a reasonably prudent person under similar circumstances. Restatement, Torts, sec. 475. Hence a person walking on a public sidewalk or street is required to exercise such care as a reasonably prudent person would exercise, under the circumstances, to discover and avoid dangerous defects and obstructions. Sloan v. American Press., 327 Mo. 470, 37 S.W.2d 884; 63 C.J.S., Municipal Corporations, Sec. 848, p. 192. This does not mean that a pedestrian is required as a matter of law to pay exclusive attention to the sidewalk or street immediately in front of him. In determining the attention which can be reasonably expected from the pedestrian, account is taken of the circumstances surrounding him. Little v. Kansas City, 239 Mo.App. 1007, 197 S.W.2d 1005; Lovins v. City of St. Louis, Mo.App., 90 S.W.2d 430; Merritt v. Kansas City, Mo.App., 46 S.W.2d 275. It has been held, therefore, that a pedestrian's failure to discover and avoid a dangerous defect or obstruction may be excused where his attention was diverted for sufficient cause...