Fadem v. City of St. Louis

• Decision Date: 08 December 1936
• Docket Number: No. 23891.,23891.
• Citation: 99 S.W.2d 511
• Parties: FADEM v. CITY OF ST. LOUIS et al.
• Court: Missouri Court of Appeals

99 S.W.2d 511

FADEM v. CITY OF ST. LOUIS et al.

No. 23891.

St. Louis Court of Appeals. Missouri.

December 8, 1936.

Rehearing Denied December 23, 1936.

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

"Not to be published in State Reports."

Action by Fannie Fadem against the City of St. Louis, a municipal corporation, and others. Judgment dismissing case, and plaintiff appeals.

Reversed and remanded.

Moldafsky & Moldafsky, of St. Louis, for appellant.

Edgar H. Wayman, City Counselor, and Jerome Simon, Associate City Counselor, both of St. Louis, for respondent City of St. Louis.

Clark M. Clifford, of St. Louis, for respondents John Wind and Joseph H. Goldman.

BENNICK, Commissioner.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff on August 2, 1933, when she was caused to slip and fall upon the sidewalk in front of the premises of defendants, John Wind and Joseph H. Goldman, doing business as Wind & Goldman Produce Company, at 917½ North Fourth street in the City of St. Louis, which was also joined as a party defendant to the action.

At the close of plaintiff's case the court peremptorily instructed the jury to bring in a verdict for defendants, whereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside. Her motion to that effect was subsequently denied by the court; and from the judgment entered dismissing the case at plaintiff's costs she has duly perfected her appeal to this court, where the appellate jurisdiction lies, the amount in dispute being the sum of $5,000, and the defendant city being sued only in its corporate or ministerial capacity.

Plaintiff, who is a widow, was about 54 years of age at the time of the happening of the accident. She has two children, a daughter, Sylvia Boonshaft, with whom she resides at 1165 Blackstone avenue, and a son, Ben Fadem, who is employed by a wholesome fruit company located at 1011 North Third street. Third and Fourth streets unite a block or so south of the fruit company's place of business, and the immediate neighborhood is commonly known as Commission Row because of the fact that it is given over to and occupied by concerns which deal by wholesale in vegetables, fruits, and poultry.

About 1 o'clock in the afternoon of August 2, 1933, plaintiff had occasion to call to see her son on a business matter at his place of employment. Incidentally, this was the first time that she had ever been down in that neighborhood, though it appears that she had lived in St. Louis for the greater part of her life.

The matter plaintiff had to take up with her son required no more than five or ten minutes to complete; and when she was preparing to leave, her son advised her to walk south on the side of the street she was then on to Franklin avenue, where she could board a Wellston street car to her home. She accepted her son's directions, and was following the course suggested to her by him which took her past the place of business of the Wind & Goldman Produce Company at 917½ North Fourth street, where it was that she was caused to slip and fall and sustain the injuries for which she seeks redress in damages in this action.

In her direct examination plaintiff gave the following version of how the accident occurred:

"As I was walking towards Franklin avenue I came to 917½ North Fourth street, and I saw garbage and water on the sidewalk in front of that address. The garbage was composed of cabbage leaves and other leaves. There were boxes of vegetables on either side of the sidewalk, against the building, and near the street curb. This left only a small space for pedestrians to walk. The sidewalk at this place was of concrete.

"When I saw the garbage and water on the sidewalk and the narrow place through which I had to walk, I said to myself, `Well, I will pass if God be with me,' and although I was afraid I would fall, I started to walk across, and after I had taken one step and then another, the first thing I knew was that I was lying on the sidewalk. I had slipped and fell straight with my head down."

Interrogated about the matter on cross-examination conducted by counsel for defendant city, plaintiff again detailed the facts of the occurrence in the following language:

"When I approached 917½ Fourth street, I saw plenty of water and cabbage leaves, there were other leaves there, but just what kind of leaves they were I couldn't say. All I know is that there were leaves there, about a bushel in all, scattered over the sidewalk.

"I hesitated before I started to walk across, and said to myself, `I will make it if God be with me'. I didn't think I was taking a chance. * * * One foot slipped from under me and I fell back, the back of my head hitting the sidewalk first."

She testified further that two men whom she did not know picked her up off of the sidewalk and brought out a chair for her from the premises of the produce company, and that while she was sitting there defendant Goldman came out and spoke to her, and inquired if she was badly hurt; that he gave her a card upon which was printed the name and address of his firm; and that after giving her the card he said to her, "Call me up how you feel and see if you need a doctor, call your doctor."

Plaintiff's son, Ben Fadem, testified that about 11:30 o'clock in the morning he had passed by the produce company's place of business on his way to lunch, and that at that time he had noticed that there were a lot of boxes of vegetables on the sidewalk in front of the premises; that there were "lots of greens" on the sidewalk that had fallen out of their containers; and that the sidewalk was wet. As a matter of fact, he testified that a similar condition prevailed all the time "all along the neighborhood," including the sidewalk in front of the premises of the Wind & Goldman Produce Company. He admitted on cross-examination, however, that although he had observed the débris and water on the sidewalk just before noon, he had nevertheless advised his mother to take that route in going to the point where she would board the street car for her home.

In her petition plaintiff alleged negligence on the part of defendants in having allowed and permitted water, green leaves, and refuse from the produce owned and controlled by defendants Wind and Goldman to be and remain upon the sidewalk in front of the latter's premises so as to have rendered the sidewalk slick and slippery and not reasonably safe for use by pedestrians, when such condition had existed for a sufficient length of time before plaintiff's injury was received for defendants to have become aware of it and to have remedied the same.

Defendant city answered individually, and defendants Wind and Goldman jointly, the answer in each instance consisting of a general denial, coupled with a plea of contributory negligence.

Inasmuch as the appeal is from a judgment of dismissal which was entered upon the taking of an involuntary nonsuit, it follows that the question for our consideration is whether there was substantial evidence, viewed most favorably from plaintiff's standpoint, and with her accorded the benefit of all the legitimate inferences in the case, to have raised an issue of fact for the jury's determination within the limits set by the pleadings.

The law of the case is not so troublesome as is the matter of the application of it to the facts in evidence.

The case is one where a pedestrian, lawfully attempting to use a public sidewalk, is injured by reason of slipping upon foreign objects and substances allowed to be and remain upon the sidewalk, and thereafter seeks redress in damages from the owners or proprietors of the abutting property, as well as from the city, which owes the duty to the public to exercise due care to maintain the sidewalk in a reasonably safe condition for the use for which it is intended.

So far as concerns the liability of the owners or proprietors of the abutting property, which in this case means defendants Wind and Goldman, it suffices to say that their prime obligation in the matter of the maintenance of the sidewalk was owed to the city and not to the public, and that they are to be held liable to plaintiff in this action only upon proof that the condition which brought about her injuries had been caused or created by their own affirmative act. Callaway v. Newman Mercantile Co., 321 Mo. 766, 12 S.W.(2d) 491, 62 A.L.R. 1056; Stith v. J. J. Newberry Co., 336 Mo. 467, 79 S.W.(2d) 447; Beck v. Ferd Heim Brewing Co., 167 Mo. 195, 66 S.W. 928; Wright v. Hines (Mo.App.) 235 S.W. 831; Stewart v. Sheidley, 223 Mo.App. 554, 16 S. W.(2d) 607.

Defendants Wind and Goldman recognize the correctness of this statement of the law, and argue from it that they are not to be held liable to plaintiff in this case because of the want of direct evidence that the leaves and refuse upon which she slipped and fell had been placed upon the sidewalk by them or at their instance.

It is true that plaintiff's case showed no more by way of direct evidence than that the leaves and refuse were present on the sidewalk immediately in front of the premises of defendants Wind and Goldman. Of course, from the very nature of the business carried on by these defendants there would be a strong probability that the leaves and refuse lying directly in front of their property had fallen from crates or boxes of their own produce as the same were moved in or out of the building across the sidewalk, but there was nevertheless no direct proof of such fact, nor did the evidence exclude the possibility that the condition in question might have been caused and created by other dealers in the immediate neighborhood who handled their own produce in the same fashion as did defendants Wind and Goldman.

We think, however, that counsel in arguing the insufficiency of the evidence have neglected to give due weight and consideration to one very significant circumstance in the case, which is...