Fath v. City of Cape Girardeau

• Decision Date: 07 November 1939
• Docket Number: No. 25160.,25160.
• Citation: 132 S.W.2d 1073
• Parties: FATH v. CITY OF CAPE GIRARDEAU.
• Court: Missouri Court of Appeals

132 S.W.2d 1073

FATH v. CITY OF CAPE GIRARDEAU.

No. 25160.

St. Louis Court of Appeals. Missouri.

November 7, 1939.

Appeal from Cape Girardeau Court of Common Pleas; L. L. Bowman, Judge.

"Not to be published in State Reports."

Action by Machdelina Fath against the City of Cape Girardeau, Missouri, for personal injuries sustained when plaintiff fell in a hole in a sidewalk. From a judgment for the plaintiff for $600, the defendant appeals.

Affirmed.

R. P. Smith and B. Hugh Smith, both of Cape Girardeau, for appellant.

Oscar A. Knehans and Jack O. Knehans, both of Cape Girardeau, for respondent.

McCULLEN, Judge.

This case is before this court for the second time on appeal. It is an action for damages for personal injuries alleged to have been sustained by plaintiff-respondent resulting from a fall on a sidewalk in the City of Cape Girardeau. The first trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff in the sum of $1,400. On appeal by defendant this court reversed the judgment and remanded the cause for another trial because of erroneous instructions given by the trial court. See Fath v. City of Cape Girardeau, Mo.App., 115 S.W.2d 75. At the conclusion of the second trial, there was a verdict and judgment in favor of plaintiff in the sum of $600. From that judgment defendant has taken this appeal.

Plaintiff's petition alleges that on or about January 17, 1936, at about nine o'clock in the evening, she was walking on a concrete sidewalk on the east side of South Spanish Street in the City of Cape Girardeau and stepped into a hole or broken place in the sidewalk, causing her to fall and sustain injuries. No question as to the nature and extent of plaintiff's injuries arises on this appeal, hence it is not necessary to refer further to that subject.

Defendant's answer, after a number of formal admissions not necessary to notice here, generally denies the allegations of plaintiff's petition and alleges, as an affirmative defense, that plaintiff was accustomed to traveling regularly and frequently over the sidewalk described in plaintiff's petition by daytime and nighttime; that she failed to keep a vigilant watch for the hole or broken place in said sidewalk, and failed to walk carefully on said sidewalk and to avoid stepping into the hole or broken place in said sidewalk; and that her negligence in this respect contributed directly to such injuries, if any, as plaintiff may have suffered.

Defendant concedes in its brief that there is sufficient testimony in the record to support findings that the sidewalk was defective, that it was a public sidewalk within the defendant city, and that plaintiff fell thereon and was injured.

The evidence shows without dispute that, at about nine o'clock on the evening in question, plaintiff, a woman sixty-four years of age, weighing one hundred and eighty-seven pounds, accompanied by her daughter, Bridget Fath, and Marie Schach, a friend, after leaving evening services at St. Vincent's Church, was walking along South Spanish Street when she suddenly fell to the sidewalk. The testimony shows that plaintiff fell at a place where there was a hole or broken place in the concrete sidewalk; that the hole or broken place was irregular in size and shape, ranging from two and one-half to four inches deep and from about twelve to fourteen inches in diameter; that the sidewalk had been in that condition for a number of years. One witness testified that the sidewalk was in bad condition ever since he could remember it; and that it was "busted up and down, had holes in it." Another witness testified that the hole or broken place was rough, as though the top layer of concrete had been chipped off, leaving the rough material underneath exposed.

Plaintiff testified that there was no snow or rain; that the sidewalk was dry; that it was a pleasant night, but "kinda cloudy"; that they "walked as carefully as anybody could. My daughter had me on my right arm, I was in the middle and Marie Schach had me on the left, walking, looking down and forward." Plaintiff further testified that when they got to 34 South Spanish Street she got on the bad concrete and "it broke up"; that her foot twisted and "down I went." Plaintiff further testified that she could not tell how she stepped in that hole; that she had seen in the daytime that the sidewalk was bad; that she had walked around that place in the daytime on several occasions, "but I did not remember it that night and I never had the least idea anything would happen"; that her ankle was broken in the hole; that it "just went under — twisted right under."

The testimony shows that Mrs. Mary Elizabeth Miles and Grace Miles, her daughter, were walking behind plaintiff and the two women with plaintiff; that immediately after plaintiff fell, Mrs. Miles and her daughter came and helped plaintiff to get up, and plaintiff was then taken home.

The testimony further shows that the street was dark at the time plaintiff fell, one witness testifying that it was so dark she could not see the hole where plaintiff fell. The testimony of Bridget Fath, plaintiff's daughter, Marie Schach, Mrs. Mary Elizabeth Miles and Grace Miles corroborated generally the testimony of plaintiff with respect to the manner of her fall, the general condition of the sidewalk, the location of the hole or broken place, and the darkness at the point where plaintiff fell.

Defendant contends that plaintiff was guilty of contributory negligence as a matter of law, and argues that the evidence shows that, at the time she fell, plaintiff was familiar with the sidewalk; that she knew the hole was there and that it was dangerous; that, in spite of this fact, she walked along that bad sidewalk on a dark night in the same manner and without exercising any more or different care than she would exercise in walking in broad daylight. Defendant's argument in this respect refers to plaintiff's testimony on cross-examination where she said that on the night in question she walked "just about like I walked when I came up to the courthouse this morning", and, "actually, to tell the truth, I never thought about that bad place until I went down."

Defendant contended in this court on the first appeal that plaintiff was guilty of contributory negligence as a matter of law, but this court overruled that contention. Defendant asserts, however, that the record showing the testimony of plaintiff on cross-examination at this second trial goes farther to demonstrate the carelessness of her actions than did her testimony at the first trial. It would serve no useful purpose to enter upon an extended discussion of the distinction between the evidence at the first trial and the evidence at the second trial. It is clear that this court would not be justified in holding that plaintiff was guilty of contributory negligence as a matter of law on...