Cooper V. City of Caruthersville:

• Decision Date: 02 July 1924
• Docket Number: No. 3514.,3514.
• Citation: 264 S.W. 46
• Parties: COOPER v. CITY OF CARUTHERSVILLE.
• Court: Missouri Court of Appeals

264 S.W. 46

COOPER v. CITY OF CARUTHERSVILLE.

No. 3514.

Springfield Court of Appeals. Missouri.

July 2, 1924.

Rehearing Denied July 22, 1924.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Mrs. N. H. Cooper against the City of Caruthersville. Judgment for plaintiff and defendant appeals. Reversed and remanded.

Ward & Reeves, of Caruthersville, for appellant.

Shepard & Hawkins, of Caruthersville, for respondent.

BRADLEY, J.

This is a suit for personal injury alleged to have been caused by glass being on a sidewalk. Plaintiff recovered and defendant appealed. The petition states the facts upon which the cause is based. The answer is a general denial and a plea of contributory negligence.

Defendant assigns error on the refusal of its demurrer at the close of the case, and on the instructions given and refused.

About 10 a. m. April 3, 1922, a Miss Myrick ran her automobile against a white way light post at or near the northwest corner of Carleton avenue and West Third street in the city of Caruthersville, and knocked the post down, and the broken glass from the light globes fell on the concrete sidewalk and thereabout. About 2 p. m. April 4th plaintiff, 74 years of age, on her return home from town where she had been to vote, stepped on a piece of this glass, slipped and fell, and received serious injury.

Defendant's demurrer is bottomed upon three propositions: (1) That plaintiff failed to show any causal connection between the injury and the negligence charged; (2) that neither actual nor constructive knowledge on the part of defendant was shown; and (3) that plaintiff was guilty of contributory negligence as a matter of law.

It is charged in the petition that defendant city had negligently and carelessly permitted this glass to remain upon this sidewalk, and that plaintiff while in the exercise of due care stepped upon some of the broken pieces of glass which caused her to slip and fall. Defendant makes the point that plaintiff did not establish that she stepped on the glass, or that her foot slipped on or off the glass. Plaintiff testified:

"When I got up the street past the corner of Carleton avenue, that was when I got hurt on the walk. Q. What caused you to fall? A. Glass. Q. [low did the glass cause you to fall? A. I was walking home and came to where the glass had been tramped down. I saw the biggest part of the glass laying on the sidewalk; I wanted to walk around it; I never thought about falling, and started to make a step, when my foot slipped out from under me, and down I went. Q. You were trying to get around it? A. The glass was mashed and tramped down so I left it and went to the right and I went a step; it was just as quick as lightning—my foot slipped and away I went."

Jeff Buchanan testified:

"I was in the street where you go around to go to the depot when I saw her fall. I was in a wagon and when I saw her fall I got out of the wagon to help her up. I saw some glass on the sidewalk right where she fell—I walked over some glass as I walked up to where she was. She was lying in the middle of it; glass was all around her."

Frank Brazel testified that there were pieces of glass scattered over the sidewalk. Plaintiff in answer to a direct question stated that glass caused her to fall. No objection was made to this question or answer because it is in the nature of conclusion evidence. No objection of any kind was made. Such answer may or may not be a conclusion. If plaintiff knew what caused her to fall and stated the fact, then her answer is not a conclusion. In addition there are the attending circumstances. Plaintiff was walking on the sidewalk. Glass was on the sidewalk. Glass was all around where she fell. She was "lying in the middle of it." We think that there was substantial evidence tending to show that plaintiff stepped upon a piece or pieces of glass, and that she slipped because of said glass and fell. Headdy v. Wright Tie Co. (Mo. App.) 262 S. W. 447.

There was no evidence that any city official had actual knowledge that this glass was on the sidewalk, and defendant says that it was not of such obvious character as to impute notice. For the plaintiff the court instructed on this point that if the jury found that a sufficient time had elapsed, from the time the lamp post was knocked down till plaintiff was injured, for the city, by the exercise of ordinary diligence, to have discovered and removed the broken glass, then such would be sufficient as to notice. Defendant requested and was given an instruction to the same effect. The point where plaintiff fell was on the north side of West Third street, about 350 feet west of the city hall, and between the Frisco depot and up town. The sidewalk was one of the most traveled walks in the city, and the walk along which one would most likely go in going from the Frisco depot to the city hall, up town, or to the leading hotel; or in going from up town, or from the city hall, or from the hotel, to the Frisco depot. The mayor testified that the officers, meaning police officers we assume, generally met the night train, and sometimes the morning trains.

It was the duty of the city to exercise reasonable care to keep its sidewalks in a reasonably safe condition. The reasonable care required is to be determined by the attending conditions. McKissick v. St. Louis, 154 Mo. 588, 55 S. W. 859. The question then is: In view of the short time that had elapsed from the time the glass got on the sidewalk until plaintiff was injured, was there sufficient evidence to take to the jury the question of notice? Defendant cannot be convicted of negligence because the glass was on the sidewalk unless it had notice thereof, or unless it had been thereon for a sufficient length of time to justify the inference that defendant's officers knew it was there, or by reasonable diligence could have ascertained that the glass was there in time to have removed it before plaintiff was injured. McKissick v. St. Louis, supra. This glass was on a much-traveled sidewalk, at one of the most public places in the city; therefore, it was defendant's duty to use greater diligence to discover it than if it had been at some remote and little used place. Young v. Webb City, 150 Mo. 333, 51 S. W. 709. In the McKissick Case the question of notice is discussed. We do not deem it necessary to discuss at length the subject here. Under the facts we rule that the question of defendant's knowledge was for the jury. See, also, Reedy v. Brewing Association et al., 161 Mo. 523, 61 S. W. 859, 53 L. A. 805.

Defendant argues that plaintiff was guilty of contributory negligence as a matter of law because she saw the glass on the sidewalk at the time and before she fell. We have set out about what plaintiff said as to what she saw. She stated that she saw the glass and wanted to walk around it, and started to make a step and her foot slipped. Before plaintiff would be guilty of contributory negligence as a matter of law this glass on the sidewalk must have rendered the sidewalk so dangerous that a reasonably prudent person would not have attempted to pass over it. Stretch v. City of Lancaster (Mo. App.). 206 S. W. 389; Stephens v. City of Eldorado Springs (Mo. App.) 190 S. W. 1004; Kiefer v. City of St. Joseph (Mo. Sup.) 243 S. W. 104. Many persons passed over this glass without injury. There is no substantial support in the record or in the books for the contention that plaintiff was guilty of contributory negligence as a matter of law. The question of her negligence was for the jury.

Defendant challenges instructions 1, 2, 4, and 5 given at plaintiff's request, and complains of refusal of instructions 2, 3, and 4 requested by it. The complaint against instructions 1 and 4 requested by plaintiff, and especially No. 4, is that they placed upon the defendant city the duty to exercise ordinary care to keep this sidewalk "in a good and safe condition." Defendant's refused instruction No. 4 stated that plaintiff was seeking to recover "upon the ground that defendant had, failed and neglected to exercise ordinary care to keep the sidewalk mentioned in the evidence reasonably safe for pedestrians traveling thereon," etc. Plaintiff's instruction No. 4 was framed on the theory that it was the duty of defendant city to exercise ordinary care to keep the sidewalk in question in a safe condition. Defendant's refused instruction No. 4 was as to that feature framed upon the theory that the duty of defendant was no more than to exercise ordinary care to keep this sidewalk in a reasonably safe condition. It is urged that plaintiff's instruction could be construed to enjoin upon defendant the absolute duty to keep its sidewalks safe. We find no case supporting plaintiff's theory of defendant's duty as to its sidewalks. Learned counsel state that plaintiff's instruction No. 4 is taken from Tritz v. City of Kansas, 84 Mo. loc. cit. 643. Plaintiff's instruction No. 4 is substantially the same as instruction No. 2 on page 643 of the Trity, Case. The court did not approve instruction No. 2 in the Tritz Case, but held that when all the instructions were read together "the question of diligence and negligence on the part of plaintiff and ...