Courtney v. City of Ferguson
| Decision Date | 15 March 1966 |
| Docket Number | No. 32043,32043 |
| Parties | -Respondent, v. CITY OF FERGUSON, Defendant-Appellant. St. Louis Court of Appeals, Missouri |
| Court | Missouri Court of Appeals |
Morris, Wuestling & James, John J. Morris, Richard C. Wuestling, III, St. Louis, for defendant-appellant.
Robert E. Morley, St. Louis, for plaintiff-respondent.
This is an action for damages for personal injuries alleged by plaintiff to have been suffered by her as a result of a fall caused by a condition of a public street in the City of Ferguson, Missouri, alleged to have been hazardous and dangerous for pedestrians using said street. There was a verdict and judgment for plaintiff in the sum of $6,300.00. Defendant has appealed from the judgment.
The incident which gave rise to this suit occurred on June 1, 1961, in the 600 block of Royal Avenue, between three-thirty and three-forty-five in the afternoon. Plaintiff said the afternoon was 'hot and sunny.' The record of the United States Department of Commerce Weather Bureau was introduced in evidence showing the temperatures for May 31, 1961, and June 1, 1961. This record disclosed a high temperature on June 1, 1961 of eighty-seven degrees. Plaintiff testified she started walking west in the 600 block of Royal Avenue at Chambers Road. At that time, she observed 'pools of tar' in the street. She attempted to avoid them by 'walking in and out;' but she came to a particular spot and her feet 'got trapped in the tar.' At the time, plaintiff was wearing 'pedal pushers' and 'rubber thongs' on her feet. The thongs are put on by inserting the big toe through an opening, and when on the big toe, the other toes stick out. As heretofore stated, when plaintiff came to a particular pool of tar, her right and left feet got stuck, the right more than the left. When this occurred, plaintiff lost her balance and fell forward landing on her right elbow, knee and right side. After her fall, Mrs. Edna Blaskow, who was in a driveway near the scene of the fall came to plaintiff's assistance. At that time, Mrs. Blaskow noticed that plaintiff had asphalt on the front of her blouse, her shorts, her legs, and the heel of her left hand. Plaintiff had arisen when Mrs. Blaskow got to her and was standing at the edge of the street. At that time, one of plaintiff's shoes was stuck in the tar in the street. The other shoe was in that area but Mrs. Blaskow did not recall its exact position.
Plaintiff did not recall that she had stepped in any other pool of tar prior to her fall, nor did she remember how large the pool of tar was that she fell into, or how deep it was, but did recall that the tar came up around her toes. Mrs. Blaskow testified the tar was in an area approximately a foot and a half to two feet wide, and three feet long. She stated that the depth of the tar at the point she recovered plaintiff's thongs was one-half inch. She further testified that the condition of softness of the street existed immediately prior to June 1, 1961, and that she had reported the condition to the City Hall three or four days before plaintiff's accident; that she stated to the person who answered the phone that the street was getting 'soft and tacky,' and requested 'that they come out and put sand on it.'
Mrs. Blaskow took plaintiff to her home, and upon arrival there, called the City Hall and reported the incident. Plaintiff was then taken in an ambulance to the office of Dr. Solon Harris. After Dr. Harris examined her, plaintiff was sent to Faith Hospital where she remained two weeks, Since the size of the verdict is not challenged, we will not detail the medical evidence.
Plaintiff's verdict directing instruction, which is challenged on this appeal, charged the jury that if they found that the street was at the time, in an unsafe and dangerous condition for travel thereon by the public by reason of a melting and a collection of asphalt which formed irregular areas of soft asphalt, which had existed a sufficient length of time before the time of the alleged injury to plaintiff for defendant by the exercise of ordinary care to have discovered and repaired said street before the time of the alleged accident; and if they found that at the time in question, plaintiff was walking over said street using ordinary care for her own safety; and while doing so was caused to fall upon said street and be injured by reason of the unsafe and dangerous condition of said street, then there should be a verdict for plaintiff.
It is defendant's contention that the above mentioned instruction was erroneous for the reason that it did not require the jury to find that defendant's failure to act in the premises constituted negligence.
We have carefully considered the point urged and the authorities cited by defendant in support thereof and have reached the conclusion there is no merit in the contention. In our judgment, the instruction hypothesizes facts which if found by the jury convict defendant of negligence as a matter of law, and for that reason, it was not necessary to submit to the jury the question whether defendant's failure to act constituted negligence. Our ruling is based upon our decision in Butler v. City of University City, Mo.App., 167 S.W.2d 442. In that case, plaintiff sued for personal injuries sustained by her when she fell as a result of stepping in a broken portion of a sidewalk which formed a depression from three-fourths of an inch to an inch and a half. The negligence charged was failure to repair same when defendant knew or by the exercise of reasonable care should have known of such defect and its dangerous condition. There was a verdict and judgment for plaintiff. On defendant's appeal, one of the points urged was alleged error in plaintiff's verdict directing instruction in that it failed to require a finding that defendant's failure to repair was negligence. In rejecting this contention, we said:
'Continuing its attack on this instruction, appellant says that it is erroneous because it did not require the jury to find that the defendant negligently failed to repair the sidewalk, or that its failure, if any, to repair the sidewalk, was a failure to exercise ordinary care.
'The instruction, before directing a verdict for plaintiff, did require the jury to find that the sidewalk was by reason of the hole or crack therein not reasonably safe for use by the plaintiff and the traveling public; that defendant knew or by the exercise of ordinary care should have known of the existence of said hole or crack in said sidewalk; that said hole or crack rendered the sidewalk unsafe for reasonable use by the traveling public; that defendant failed to repair the same; and that the failure to repair was the proximate cause of ...
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