Cuddy v. Shell Petroleum Corp.
| Decision Date | 04 April 1939 |
| Docket Number | 24,902 |
| Citation | 127 S.W.2d 24 |
| Parties | HELEN R. CUDDY, (Plaintiff) Respondent, v. SHELL PETROLEUM CORPORATION and B. S. O'REILLY, (Defendants), SHELL PETROLEUM CORPORATION, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court, City of Saint Louis. Hon. William B Flynn, Judge.
Edward J. McCullen
This suit was brought by respondent, as plaintiff, against Shell Petroleum Corporation and B. S. O'Reilly as defendants to recover damages for personal injuries alleged to have been sustained by plaintiff as the result of slipping and falling on a public sidewalk adjoining an oil and gasoline filling station in the City of St. Louis, Missouri. The case was tried before the court and a Jury and resulted in a verdict and Judgment in favor of plaintiff and against defendant Shell Petroleum Corporation in the sum of $3,000.00, and in favor of defendant B. S. O'Reilly. From the judgment against it, defendant Shell Petroleum Corporation has duly appealed to this court.
The first amended petition of plaintiff as later amended, on which the case was tried, alleged that Shell Petroleum Corporation owned, operated, and maintained a filling station at 1417 North Kingshighway Boulevard in the City of St. Louie by and through its agent, employee, and lessee defendant B S. O'Reilly; that a slope and driveway had been made into the public sidewalk on Wells Avenue which led into the filling station, and was constructed for the convenience of the owner and operator of said station and its customers; that, while Shell Petroleum Corporation was the owner and in possession of said property, the aforesaid driveway existed in said sidewalk and was there from and after October, 1955, until the time of plaintiff's fall thereon, and during the time defendant B, S. O'Reilly occupied the premises as lessee, agent, and servant of Shell Petroleum Corporation, and prior thereto; that said public sidewalk was so constructed and maintained as to be dangerous and a nuisance in that the grade was different from the adjacent sidewalk, from which water would drain onto said sloping driveway on which ice would be likely to torn and remain so that persons walking thereon would be likely to fall and be injured.
Plaintiff's amended petition further alleged that, on or about March 13, 1937, plaintiff was passing over the driveway part of said sidewalk when she was caused to slip, fall, and be injured as a direct result of the negligence and carelessness of defendants, their agent, lessee, and servant in the following respects:
(1) That said driveway through the public sidewalk was negligently constructed at an angle which was dangerous to persons, particularly plaintiff, walking thereon;
(2) Failure to exercise ordinary care to remove ice and snow and sleet formed thereon;
(3) Failure to spread a covering or any kind on said driveway when defendants knew, or, by the exercise of ordinary care would have known, of its slippery, dangerous, and unsafe condition in time to have covered the same and thereby avoided injuring plaintiff;
(4) Failure to inspect said place when defendants could thereby have ascertained its condition in time to have remedied the same;
(5) Failure to warn plaintiff of the condition aforesaid;
(6) Defendants negligently permitted said condition to be and remain when they knew, or by the exercise of ordinary care would have known, that said driveway was so constructed that there was more than one inch vertical rise to one foot horizontal distance, thereby causing the grade thereof to be steep and dangerous to persons walking thereon in the event said driveway had deposited thereon wet, slippery or slick substances; that said construction was in violation of Section 2328 of Ordinance No. 36614 of the City of St. Louis, which provides as follows:
"Hereafter no sidewalk shall be constructed, the cross-grade of which, or rise from the curb line to the building line, shall be greater than one-half inch vertical rise to one foot horizontal distance; and in each instance the curb line shell be maintained at its correct elevation above the city directrix, which shall be determined from the construction of the particular street In question.* * *"
Violation of the ordinance is declared therein to be a misdemeanor punishable by a fine.
Plaintiff's petition contained allegations as to the injuries sustained by her, but do questions as to injuries are raised on this appeal.
Defendant Shell Petroleum Corporation filed an answer containing a general denial coupled with a plea that "whatever injuries, if any, were sustained by plaintiff on the occasion in question, by and on account of the matters and things in said petition contained and set forth, were caused by the negligence and carelessness of plaintiff directly contributing thereto." The separate answer of defendant B. S. O'Reilly contained a general denial and a general plea of plaintiff's contributory negligence.
It appears that the filling station involved heroin was on the southwest corner of Kingshighway and Wells Avenue. Plaintiff testified that she lived at 5020 Wells Avenue, immediately adjacent to the filling station; that, about 12:50 P.M. on March 13, 1937, she started to visit a nearby store, and to do so had to go down Wells Avenue and cross the driveway leading into the filling station from Wells Avenue. She said:
She was asked if she noticed what she slipped and fell on, and answered:
She stated that she did not know that ice had been there before she fell. With respect, to the grade of the driveway, plaintiff testified: "Well, it is very steep, because you have a time walking over it when it is dry." She described how she was assisted to her feet by a man who came from the filling station, to whom she said: "That is a bad place, anyway", to which the man answered:
Defendant B. S. O'Reilly, called as a witness for plaintiff, testified that he had been operating the filling station for some time; that he took it over before October, 1955; that most of the repairing and maintenance of the place was done by the Shell Company. He further testified:
Elmer Francis Cuddy, plaintiff's husband, testified, as a witness for plaintiff, that nearly every evening and morning he had occasion to pass over the sidewalk in question; that, on the morning of the 12th, there was ice on the sidewalk. Ha stated:
The witness further testified that, after the accident, be saw ashes on the driveway.
C. C. Maurer, an engineer, testified, as a witness for plaintiff, that he had prepared drawings of the sidewalk and driveway in question, and produced a sketch which was introduced in evidence as plaintiff's Exhibit A. In connection with the introduction thereof, the witness testified that the pitch of' grade of the driveway on the Kingshighway side of the oil station was 7.5%; that on the Wells Avenue side thereof "the grade there is 10.08%." The witness further testified that the sidewalk on the Wells Avenue side was nine feet wide including a parkway between the walk and the curb; that "there was on this side an 11 1/2 inch rise in the nine feet." With respect to the grade, the witness testified:
On behalf of defendant, John A. Hacker testified that ho was an attendant for Mr. O'Reilly et the filling station in question, end was to employed at the time of plaintiff's injury; that on that day he bed occasion to clean the public sidewalk three times; that he observed ice which had formed on the sidewalk et that point; that he did not see plaintiff at the tine she fell, but when he observed her she was near the west end of the driveway on the Wells Avenue aids; that there was about en inch of snow on the sidewalk at that point, but he didn't go back to see whether there was ice on there after plaintiff fell. The witness testified that he did not make any statement to plaintiff that he was sorry he had hot been able to clean the snow off; that the Shell Company doss the maintenance work around the filling station,...
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