Dodge v. City of Kirkwood

• Decision Date: 05 February 1924
• Docket Number: No. 18269.,18269.
• Citation: 260 S.W. 1012
• Parties: DODGE v. CITY OF KIRKWOOD
• Court: Missouri Court of Appeals

260 S.W. 1012

DODGE v. CITY OF KIRKWOOD

No. 18269.

St. Louis Court of Appeals, Missouri.

February 5, 1924.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

"Not to be officially published."

Action by F. M. Dodge against the City of Kirkwood. Judgment for plaintiff, and defendant appeals. Affirmed.

Robert C. Powell, of St. Louis, for appellant.

J. J. Rowe, of Kirkwood, and A. E. L. Gardner, of St. Louis, for respondent.

DAVIS, C.

Plaintiff, while walking along the sidewalk of a public street, fell therefrom and was injured, due to the alleged negligence of defendant, in constructing and maintaining the sidewalk in a dangerous condition, without providing a guard or handrail, and in permitting weeds to grow up and around said sidewalk. The jury awarded plaintiff $1,000, and defendant appeals from the judgment entered thereon.

The evidence tends to show that on July 28, 1921, at nearly 8 p. m., plaintiff, about 82 years of age, was walking southwardly along the sidewalk on the east side of Geyer road, a public street, in the city of Kirkwood, a town of the fourth class. While he had lived in Kirkwood for some years, ho bad never before been over this road or sidewalk. The sidewalk was of granitoid, 4 feet wide. On the immediate west side and edge of the walk, there is an apron or supporting wall of concrete, about 28 feet in length and about 3 feet deep. From the bottom of the apron extending west 2 feet ' is a concrete gutter, at the west edge of which rises a concrete shoulder 1 foot wide and extending up some 10 or 15 inches to the surface of the roadway on the west, which it supports. Along the western edge of the sidewalk, as far as this concrete apron, weeds and grass had grown, abutting the sidewalk, the branches or foliage of which, to some extent at least, were overhanging the western edge of the sidewalk. Plaintiff's witnesses testified that no weeds grew in the gutter between the apron and the concrete shoulder, though one witness testified that there was some little grass growing in the cratlis of the gutter, but not as high as the shoulder or sidewalk.

The evidence, tending to show where plaintiff fell from the sidewalk, is to the effect that it was 75 to 95 feet south of Railroad street, and that in falling he struck his side on the so-called wall or shoulder, which was said to be about a foot and a half wide. The top of the shoulder was 1 foot 9 inches lower than the top of the sidewalk. There was no handrail along the walk, though a wooden railing had been constructed many years before, lasting a year or so.

On cross-examination plaintiff testified:

"Q. When you went across there you were going across to find houses on the other side? A. I didn't go across there; I fell across there. Q. What was your idea then; to get across there to find it? A. No, sir; it was not. I said I was going along there and I fell off. Q. Just fell off there? A. Yes, sir; that is what I said Q. Where were you going, to inquire where this man lived? A. I was calculating to go up there, beyond somewhere; there is a light there in the street; I was going to work myself along up there to find it. There is colored people live there."

Again, on cross-examination he said:

"Q. As I understand, you walked right off the side? A. I walked right off the side; yes, sir."

As shown from the evidence and the tures, there was a drop of about 3 feet immediately east of the shoulder of concrete. Plaintiff fell from the west edge of the sidewalk.

Defendant pleaded contributory negligence as follows:

"Further answering, defendant says that whatever injury, if any sustained, as alleged by plaintiff in his petition, was the result of his own carelessness and negligence directly contributing thereto."

The above pleading fails to allege a defense. Contributory negligence is of an affirmative nature, and, before it may be used as the fulcrum upon which to base the introduction of evidence and raise issues, the plea must demonstrate facts. Keppler v. Wells (Mo. Sup.) 238 S. W. 425; Heriford v. Railway (Mo. Sup.) 220 S. W. 889; Harrington v. Dunham, 273 Mo. 414, 202 S. W. 1066; Benjamin v. Railway, 245 Mo. 598, 151 S. W. 91. As there was, in legal effect, no plea of contributory negligence, defendant's instructions Nos. 5 and 7, submitting that issue to the jury, were properly refused. Therefore, the issue of plaintiff's negligence was properly kept from the jury, unless plaintiff's evidence establishes that he was guilty of con". tributory negligence as a matter of law, in which event the instruction in the nature of a demurrer to the evidence should have been given. Sissel v. Railroad, 214 Mo. 515, 113 S. W. 1104, 15 Ann. Oas. 429; O'Neill v. City of St. Louis, 292 Mo. 656, 239 S. W. 94. We now proceed to determine plaintiff's negligence as a matter of law.

II. Maintaining that plaintiff's evidence demonstrates that plaintiff was not using the care and caution the circumstances required of him, defendant complains of the action of the trial court in submitting the cause to the jury. It is the contention of defendant that plaintiff failed to give thought or pay apparent attention to what he was about to do, and that the way did not invite him to cross at that point, or, if crossing, he should have used the precaution commensurate therewith; and that, in falling or walking off the sidewalk, he was guilty of contributory negligence.

Defendant states that plaintiff's evidence failed to establish that darkness prevailed, that it was dusk at that time,, between 7 and 8 o'clock p. m., or that the street lights were lit. Admitting that a handrail was lacking, yet defendant submits that had plaintiff been using his faculties, as the law required, he would not have been injured.. Again, defendant contends that plaintiff's witnesses testified that the open space opposite the shoulder was plainly visible. This latter contention, however, is aside the evidence, for the witnesses testified as to the conditions during daylight, and not with respect to the visibility at the time of the injury. Plaintiff testified that the time of the accident was pretty near 8 o'clock, and that, beyond somewhere, there was a light in the street. The time of the rising or setting of the sun or moon upon a particular day is a matter proper for the judicial cognizance of the court. 15 R. C. L. p. 1100. Therefore, we may judicially notice that the sun set or. July 28, 1921, at 7:15 p. m. The court judicially noticed in England v. Railroad (Mo. App.) 180 S. W. 32, that 6 p. m. August 6th is broad daylight, and in Warner v. Railroad, 156 Mo. App. 523, 137 S. W. 275, that on August 13th, at 4 a. m. it is light enough. to drive stock. Therefore we may judicially...