Corley v. Andrews

• Decision Date: 19 September 1961
• Docket Number: No. 30629,30629
• Citation: 349 S.W.2d 395
• Parties: Edmund B. CORLEY, (Plaintiff) Respondent, v. Eugene R. ANDREWS, Sr., and Helen H. Andrews, (Defendants) Appellants.
• Court: Missouri Court of Appeals

Page 395

349 S.W.2d 395

Edmund B. CORLEY, (Plaintiff) Respondent, v. Eugene R. ANDREWS, Sr., and Helen H. Andrews, (Defendants) Appellants.

No. 30629.

St. Louis Court of Appeals, Missouri.

Sept. 19, 1961.

Motion for Rehearing or for Transfer to Supreme Court Denied

Oct. 17, 1961.

Dearing, Richeson & Weier and H. L. C. Weier, Hillsboro, for appellants.

E. L. McClintock, Jr., and Charles W. Medley, Flat River, for respondent.

ANDERSON, Presiding Judge.

This is an action by Edmund B. Corley, as plaintiff, against Eugene R. Andrews, Sr., and Helen H. Andrews to recover damages for personal injuries alleged to have been sustained by plaintiff on January 21, 1959, as a result of a fall on an icy sidewalk on premises owned by defendants. There was a verdict and judgment for plaintiff for $10,000. Defendants have appealed.

Defendants own and operate a motel near Desloge, Missouri. In connection with this motel they also own and operate a restaurant, which is located on the front part of the premises. On the night of January 20, 1959, plaintiff stayed as a guest at defendants' motel. On the morning of January 21, 1959, plaintiff arose about five o'clock, and at about six o'clock went to the restaurant for breakfast. Before he left his cabin he looked out of its window and observed that it was not raining. As a consequence he did not wear his top coat, when he left to go to the restaurant. When he started from the front door of his cabin he observed puddles of water in the area in front of his cabin, which he circled and entered the restaurant through the front door. The restaurant faced west. It is also a fair inference from the testimony that he noticed some ice in front of his cabin, as he emerged therefrom. Plaintiff left the restaurant about 6:30 or 6:45 A.M. He left by the same door through which he had entered. He turned to his right and proceeded along a sidewalk in front of the restaurant, and when he reached the corner of the restaurant he again turned to his right. As he turned the corner, while still on the sidewalk, he slipped on some ice and fell. As he fell he threw up his arms and landed on his back. There was water where he fell. He hit his hand on a post adjacent to the sidewalk. He stated there was no ice on the sidewalk in front of the building. After he had fallen plaintiff went to his cabin, and while there, looked at his wrist and knew then that something was wrong with it. He then returned to the cafe and asked a waitress for a cup of coffee. Later he picked up his grip and went to his car. He observed there was slush on the lid of the trunk of the car. He stated he did not remember the condition of the weather the evening before he fell. He stated that on the evening of the 20th he ate his dinner, went to his room, read the paper, and went to bed possibly about 7:30 P.M. He did not go outside and make an inspection of the weather at that time, and did not actually know what happened during the night.

After the accident plaintiff drove his car to Bonne Terre, a distance of about 4 miles. He was not able to use his left hand during this trip, but had no difficulty driving on the highway.

Plaintiff read in evidence portions of the deposition of Eugene R. Andrews, Jr. He was defendants' son and was in charge of and managed defendants' restaurant and tourist court on January 21, 1959. He testified there were general icing conditions there that day and 'maybe just a little snow'; also quite a bit of freezing rain. He stated he inspected the sidewalk in question the evening before, during which time and after, ice fell and a general icy condition prevailed. He further testified he did not attempt to keep the ice from forming or to remove it while it was forming. He said he probably made this inspection at 10:30 or 11:00 P.M. It was raining and freezing then and the sidewalk was slick.

Mrs. Ova Pratt was called as a witness by plaintiff. She lived at Cantwell, Missouri, and was, on January 21, 1959, employed at the Andrews' Cafe. She testified she went to work that morning at twenty minutes to six. She further testified that she did not remember if it was snowing or sleeting that morning when she left home, but stated there was a general icy condition all over the area.

Ancell Boyer was station attendant at the Andrews' Service Station, and testified for defendants. He got to the station about five minutes after five o'clock the morning of January 21, 1959. He testified that when he arrived there was 'fine sleet or a mist or something like that' falling which continued up to about ten or eleven o'clock. Immediately after his arrival he put salt on the sidewalk. There was a thin sheet of ice and a little snow on the sidewalk. He testified 'it was just enough snow you could tell it was a snow, * * * maybe a half inch, quarter of an inch.' He stated he put salt on the entire sidewalk. He did not clean off the ice with a shovel, but did sweep it off with a broom after the ice had melted. He could not tell when he did this, but stated it might have been ten or fifteen minutes after he put down the salt.

James P. Collins, manager of Radio Station K.F.M.O. in Flat River testified for the defendants. He stated that the records of his station showed there was freezing rain on January 20, and sleet and freezing rain on January 21, 1959. However, he did not know when the rain started to freeze on January 21, 1959.

Sgt. H. H. Barr, a highway patrolman, testifying for defendants, stated he investigated two highway accidents during the afternoon and evening on January 21, 1959, which were caused by slick road conditions. He stated he did not know what the weather conditions were at 7 o'clock that morning. W. R. Petrus, a highway patrolman, testified there were general icing conditions in St. Francois County on January 20, 1959.

He stated it was freezing and there was some ice on the highway. He believed it was sleeting early in the morning with some snow. He drove to St. Louis that day and came back to Flat River that evening, around midnight. At that time it was raining according to his testimony. He did not recall what the conditions were on January 21, 1959. James L. Englehart, a highway patrolman, also testified for defendants. He lived about a mile from the Andrews Cafe, and went to St. Louis with Petrus. He stated that on the morning of January 20, 1959, there was a general icing condition, and that when he and Petrus left St. Louis about 10:00 P.M. it was raining and that it rained continuously until they got home around midnight. He stated there was no ice on the highway at the time but there was some snow on the ground the next morning. He did not know the amount of this snow. He stated the snow must have fallen between midnight and 8:00 o'clock the next morning, the exact time he did not know. Mrs. Garnetta Hahn, who lived at Rivermines, testifying for defendants, stated she drove her car in Rivermines on January 20, 1959, shortly before 8:00 A.M. and ran into the curb. She stated that the roadway where this happened was slick. She stated the weather was bad the next day, January 21, 1959; that there was snow and ice on the ground, and it looked like it had sleeted; that she could not take her daughter to work that day; that it was raining and was misty, and foggy; that the road was bad; and that it was in that condition when they got up that morning about six o'clock. Eugene R. Andrews, Jr., defendants' witness, testified that there was a general icy condition with freezing rain on January 20th and 21st; that the sidewalk in question had been cleaned when he saw it at 8:00 o'clock the morning of January 21, 1959; that he knew there was ice on the sidewalk the night of January 20th between 10:30 and 11:00 and that it was slick; that he knew the restaurant was going to open at 6:00 o'clock in the morning and that people would be walking on the sidewalk at that time.

Defendants' Exhibit 3, being a publication of the United States Department of Commerce, containing climatological data for the State of Missouri, showed there was, at Farmington Airport, which is approximately nine miles from Andrews Cafe, 1.65 inches of precipitation on January 20, 1959 and .62 of an inch on January 21, 1959; that on January 20, 1959, the maximum temperature was 36 degrees and the minimum temperature 26 degrees; that on January 21, 1959, the maximum temperature was 34 degrees, and the minimum temperature 3 degrees and that on January 21st, there was an inch of snowfall.

Appellants contend that the court erred in refusing their motions for a directed verdict at the close of plaintiff's case, and at the close of all the evidence. In support of this contention it is urged there was no negligence shown for the reason that the plaintiff's evidence shows that the ice upon which plaintiff fell was the result of a general weather condition which prevailed at the time.

A landowner is not the insurer of the safety of his premises, but where he invites the public to use said premises, he must exercise ordinary care to keep the premises in a reasonably safe condition. Whether defendants violated this duty in the instant case depends upon the evidence viewed in the light most favorable to plaintiff.

It appears from the evidence that on January 20th there was a general icing condition in the area of defendants' premises. At 10:00 or 11:00 o'clock that night defendants' manager, Eugene R. Andrews, Jr., inspected this sidewalk in question and discovered that it was slick with ice. The next morning defendants' employee, Ancell Boyer, arrived at the service station about five minutes after five o'clock and found there was a thin sheet of ice and a small amount of snow on the sidewalk. The foregoing evidence shows that defendants had constructive knowledge of the dangerous condition of the sidewalk. Immediately after Boyer's arrival at the service station he put salt on the entire sidewalk, and after the ice had melted...