O'Connell v. Roper Elec. Co., Inc.
| Decision Date | 10 August 1973 |
| Docket Number | Nos. 9276,9277,s. 9276 |
| Citation | 498 S.W.2d 847 |
| Parties | W. R. O'CONNELL, Administrator of the Estate of Annabelle O'Connell, Deceased, and Robert O'Connell, Plaintiffs-Appellants and Respondents, v. ROPER ELECTRIC COMPANY, INC., Defendant-Appellant, and Omar M. Roper and Alma C. Roper, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Thomas Strong, William J. Hart, Horace S. Haseltine, SpringfieldFor plaintiffs-appellants and respondents, W. R. O'Connell, Annabelle O'Connell and Robert O'Connell.
Glenn A. Burkart, Buell F. Weathers, Springfield, for defendant-appellant Roper Electric Co., Inc.
Russell G. Clark, Springfield, for defendants-respondents Omar M. Roper and Alma C. Roper.
This is a suit for personal injuries by a wife and resulting damages to her husband, arising from the wife's slip and fall on an ice-coated driveway which was used as a walkway to a business office. Plaintiffs Annabelle and Robert O'Connell were awarded jury verdicts of $30,000.00 and $7500.00, respectively, against defendant Roper Electric Company, Inc., and the jury exonerated individual defendants Omar Roper and Alma Roper. Defendant Roper Electric Company has appealed from the judgment in favor of the plaintiffs and the plaintiffs have appealed from the judgment entered in favor of the individual defendants. By stipulation of the parties the appeals were consolidated in this court. 1 We affirm the judgment.
On January 2, 1970, Omar Roper was the owner of property located at 2218 North Howard, a north-south street in Springfield. He and his wife, Alma, resided in a house which was located near the street and which faced west. Behind the Roper residence was a two-story structure housing Roper Electric Company and which was orally leased to Roper Electric Company by Mr. Roper for $160.00 monthly rental. Mr. Roper was president of Roper Electric Company, Mrs. Roper was vice-president of the corporation, and a son was the secretary-treasurer of the firm. Plaintiff Robert O'Connell was an employee of Roper Electric Company and a brother of Mrs. Roper.
Access to the office of Roper Electric Company was by way of a paved driveway which was located north of the Roper's residence. The driveway commenced at the east curb line of Howard Street and sloped up and east, crossed a north-south sidewalk, and continued on an upslope eastward to Roper Electric Company. A curbing and wrought iron fence separated the driveway from the Roper yard. Signs painted on both sides of the curbing of the driveway just east of the sidewalk, directed 'Please Park In Street'. The only vehicular traffic permitted to use the driveway was as follows: the Roper's neighbor (owner of the north half of the drive) who lived just north of the driveway and whose garage was located at the northeast end of the drive; various delivery vehicles who had business with Roper Electric Company; sometimes, a dairy truck which delivered milk to the Roper residence; motor vehicles owned by Roper Electric Company, including a station wagon and an automobile furnished Mr. and Mrs. Roper by the corporation--usually parked at the rear of their residence. In addition to the limited vehicular use of the driveway it was also used as a sidewalk or walkway from Howard Street rto Roper Electric Company's office by the company's employees, customers and salesmen who called on the firm. Such persons were required to park their motor vehicles on Howard Street and walk up the driveway to the office.
The portion of the driveway between the east curb line of Howard Street and the sidewalk was constructed at the time the street was paved in the 1930's and the cost of this 'approach' was assessed against the abutting property and included in the paving tax bill paid by Mr. Roper. Roper Electric Company had thereafter paid the cost of paving the remaining portion of the driveway and paid for the maintenance of the driveway, including prior snow and ice removal. The signs directing street parking were painted on the curbing when the driveway was paved 'many years' prior to January 2, 1970.
Between December 28, 1969 and January 1, 1970 there had been intermittent snow in Springfield and sub-freezing temperatures. 2 Snow and ice had been removed from many of the city's major streets by January 2, but Howard Street had not been cleaned. During this period the driveway to Roper Electric Company had not been cleaned, nor had any gravel, sand, cinders, salt or other substance been placed on it. On January 2 the surface of the driveway was rough, rutted and had dips and gulleys of ice (caused the vehicular traffic and 'spinning of tires') and that portion of the drive between the curb line of Howard Street and the sidewalk was more rutted and ridged with ice than the rest of the drive. Mr. Roper described the condition of the driveway on the morning of January 2 as 'dribbly' ice, 'ridged', 'so if you step on it and not hold your balance, you might fall'. Snow and ice were mounded up on the curbing of the drive. Employees of Roper Electric Company who walked up the driveway the morning of January 2 had to 'zigzag' and 'pick' their way up the 'very slippery' drive because of the rough, humped and rutted ice and snow.
Friday, January 2, was payday for employees of Roper Electric Company. It was a common practice for the wives of some employees to stop by the firm's office and pick up their husband's paycheck while such employees were at work on jobs away from the office. The firm considered this a benefit to it and the employees. Mrs. O'Connell decided to pick up and deposit her husband's check since Mr. O'Connell's job with Roper Electric Company as material expediter required him to work at various locations in Springfield. About 1:30 o'clock in the afternoon she parked her car on the east side of Howard Street just short (south) of the driveway leading to the company office. She walked around the front of her car, walking without difficulty on 'crunchy' ice which permitted her feet to go through the crust. When she reached the end of the drive, in a low spot at the southwest corner she saw the drive was covered with 'thick', 'humpy', ice. The parkway (grassy area between the north-south sidewalk and the street) was 'all piled up' with snow and ice and 'wasn't safe looking to step on.' Between where she was standing and the sidewalk she saw an area 'big enough to put both feet in' which appeared to her to be dry concrete. This area was located on the south half of the driveway and 'just a good step from where the street and this approach met together.' She said she intended to put both feet in the clear spot and look for her next step from there and if she found she could not go on safely she intended to turn around and return to her car. When Mrs. O'Connell stepped on what she thought was a dry spot on the driveway with her right foot she slipped and fell on clear ice, fracturing her right wrist and right hip.
Roper Electric Company did not offer any evidence. As a part of Mr. Roper's (and his wife's) evidence a plat was received in evidence showing that the dedicated portion of Howard Street adjoining the Roper property was sixty feet in width. In addition, Mr. Roper was permitted to testify that the west edge of his property was within three inches of the retaining wall along his front yard--at the east edge of the east sidewalk. He arrived at this conclusion by measuring the distance from the west edge of the west sidewalk of Howard Street to the east edge of the sidewalk in front of his home and this measurement was fifty-seven feet and nine inches.
Roper Electric Company contends plaintiffs did not make a submissible case of negligence against it and its motion for a directed verdict at the close of the evidence should have been sustained by the trial court, because (a) the area where Mrs. O'Connell fell was part of a public right-of-way, (b) the area in question was part of a common way, and (c) the condition of the place where Mrs. O'Connell slipped and fell was an open and obvious one.
As to (a) Roper Electric Company argues that the owner or occupier of land abutting a public right-of-way has no duty to use reasonable care to keep the abutting right-of-way clear of ice and snow (Stith v. Newberry Co., 366 Mo. 467, 79 S.W.2d 447 (1934); Morgan v. Kroger Grocery & Baking Co., 348 Mo. 542, 154 S.W.2d 44 (banc 1941)), and, in support of (b) contends the principles found in landlord and tenant cases such as Fitzpatrick v. Ford, 372 S.W.2d 844, 849 (Mo.1963), should govern any duty owed Mrs. O'Connell. We disagree. We have no quarrel with the rules of law enunciated in such cases but deem such rules do not apply to the instant case because they do not govern the liability of an abutting property owner or occupant for an injury sustained on that part of a public right-of-way which the abutting owner or occupier makes a special use thereof for his own benefit and convenience.
An abutting landowner's or occupier's right to use the property within a right-of-way includes the right to construct a connecting driveway from his premises to the public street. State v. Hoffmann, 132 S.W.2d 27 (Mo.App.1939); 39 Am.Jur.2d, Highways, Streets and Bridges, § 181 (1968). Also see State v. Meier, 388 S.W.2d 855 (Mo. banc 1965). In the case before us we find that the paved portion of the driveway where Mrs. O'Connell fell was a public improvement constituting an extension of the public street or public sidewalk 63 C.J.S. Municipal Corporations § 1048 (1950). Thereafter Roper Electric Company paved the remainder of the driveway up to its office and paid for the cost of maintenance of the entire driveway. Further, that Roper Electric Company made a special use of the entire driveway, for its own benefit and convenience as a 'private' means...
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