Fischer v. City of St. Louis

• Decision Date: 15 June 1905
• Citation: 88 S.W. 82,189 Mo. 567
• Parties: FISCHER v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

88 S.W. 82

189 Mo. 567

FISCHER v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

June 15, 1905.

1. MUNICIPAL CORPORATIONS—OBSTRUCTIONS IN STREETS—PERSONAL INJURIES—NEGLIGENCE —QUESTION FOR JURY.

In an action against a city for injuries caused by falling over a stone step leading to private premises and projecting under the street, evidence held to justify submission to the jury of the question whether defendant was negligent.

2. SAME—CONTRIBUTORY NEGLIGENCE.

In an action against a city for injuries caused by falling over a stone step leading to private premises and projecting under the street, evidence held to justify submission to the jury of the question whether plaintiff was guilty of contributory negligence.

3. SAME—INADEQUATE DAMAGES.

Where plaintiff sustained a broken ankle, which, because of her age, failed to heal properly, so that she could walk only by artificial aid, a verdict for $1 in an action for the injury should be set aside as the result of prejudice.

Appeal from St. Louis Circuit Court; Selden P. Spencer, Judge.

Action by Mary Fischer against the city of St. Louis. From a judgment for plaintiff for less than her demand, she appeals. Reversed.

Hickman P. Rodgers, for appellant. Chas. W. Bates and Wm. F. Woerner, for respondent.

LAMM, J.

Action against respondent city for personal injuries predicated on its alleged negligence in permitting the half of a millstone or grindstone of considerable dimensions to be and remain in the footway or sidewalk of one of its thoroughfares— Second street. Damages laid at $5,000. Tried to a jury. Verdict, $1.

Asserting dissatisfaction over this small verdict, appellant filed a motion for a new trial challenging the verdict, because, she says, it was the result of passion, prejudice, or misconduct on the part of the jury; because the verdict was inadequate, and not commensurate with the injuries received; and because the jury failed and refused to heed the instructions of the court, in that having found the issues in favor of plaintiff, it failed to fairly compensate her for her injuries. The court below disallowed this motion, and plaintiff duly appeals here, assigning said ruling as error.

It is disclosed by the record that the pleadings are unexceptionable, and the instructions are unassailed; that at the close of appellant's case respondent challenged the sufficiency of her evidence to make a case, and the trial court overruled a demurrer thereto; and that the jury was commanded by the court, inter alia, as follows: "That if you find for the plaintiff you will assess her damages in such a sum as, from the evidence, you believe will be a fair and reasonable recompense for the injuries received by her. In fixing the amount of such damages, you will take into consideration the nature and extent of the physical injuries received, the pain and mental anguish endured, as well as the pain and inconvenience, if any, which you believe from the evidence will reasonably result from said injuries in future."

The undisputed facts follow: Second or Columbus street is a public street of St. Louis. At a certain place in this street, close to its junction with Duchoquette street, there is a sidewalk or a footway of cinders, which walk at other points along the street was made of other material. One Smith owns a tenement abutting on this cinder walk. The street line of his premises is about 18 inches higher than the level of the walk. Smith's house stands back from the street, and is approached from the street by a gateway. In front of this gate, at the outer street limit, is a half of a grindstone or millstone extending along the outside street line 3 or 4 feet, and projecting therefrom over into the sidewalk, in extreme limit, 2 1/3 feet. This stone, because of the uneven lay of the walk, or for some other cause only to be guessed at, is flush with the plane of the walk at the gate, but 5 inches above the plane of the walk at the point of farthest projection into the footway, so that a person walking in the footway close to the gate might meet with little or no obstruction, but the same person walking 2 feet 4 inches away from the gate would meet an obstruction 5 inches high. Defendant introduced evidence, not controverted, that this millstone had been there for 27 years, and filled the office of a stepping stone to enter the premises of Smith. The evidence indicated that the walk was of considerable width, and that there was ample room for pedestrians between the millstone and the curb. The evidence also indicated the nearest city light was 200 feet away. The character of this light was not shown, but it appears that at the point in question at the time in question the stone was obscured by darkness.

Appellant is an old washerwoman, burdened with the weight of 68 years. Her daughter lived adjacent to the premises of Smith, and had resided there for three years. She had visited her, say, a dozen times, and a few times—say three—had passed by this stone on said visits. It stands confessed that she was familiar with the location and character of the obstruction. On the evening of January 5, 1902, appellant visited her daughter. On returning home, accompanied by her husband, after 9 o'clock p. m., in the dark, she fell over this stone, thereby breaking and dislocating her left ankle, wherefrom she was confined to her bed for several months, suffered the pains and distress naturally incident to such injuries, and, as reasonably to be expected at her time of life, the broken bones did not knit by first impression, nor did her injuries heal kindly, but she remained crippled, and, so late as October, 1902, at the trial, was obliged to walk with artificial aid. No question whatever is raised about the extent or character of her injuries and resulting pains. The old lady told her story on the stand in a broken way, with the idioms and phrasing of her German mother-tongue, and with a consequent lack of clearness on cross-examination, needing and appealing for a touch of sympathetic intelligence to clear away obscurity. Substantially and briefly she testified that as she was walking that night on the street, she, in a general way, had the stone in mind, but that in the darkness she was confused as to its location, and as to her proximity to it, and her distance from the street line, and that in this condition of things, while intending to avoid the obstruction, and thinking she was well outside the line of danger, she fell over it, and suffered said hurts.

The foregoing is the whole story in small compass, and presents the only facts and issues for our adjudication. And on this record it is self-evident that, if appellant was not guilty of such want of care as would, as a matter of law, be contributory negligence, and if, under the evidence, as a matter of law, it cannot be said that respondent was not guilty of negligence in permitting the character of obstruction indicated to be and remain in the footway for pedestrians in one of its streets, we must avow judicial sympathy with the contention of appellant; and that sympathy has its root in the following condition of things: The jury found the issues for appellant. Now, the only allowable meaning of that finding when logically analyzed and interpreted is (1) that the jury found that respondent was negligent; (2) it found that appellant was using due care; and (3) it found that her injuries resulted from respondent's negligence. There is one other allowable hypothesis, and that is that the jury under the facts intended to and did, in all but name, find for defendant, but shrunk from meeting the issues, and put its verdict in the form it did on the question of costs. In the evolution of a trial a verdict of a jury may be likened to a correct conclusion in a syllogism, and, if the conclusion be not correct, it would put the law to open shame if a court, having due regard always for the independence of the jury and its power within bounds, did not apply a correcting hand to see that a perverted conclusion was corrected. Here we have a venerable woman coming into a court of justice for redress. Her very simplicity and humbleness and age bespeak tenderness at the hands of the law. It is adjudged that her serious injuries were the result of respondent's negligence, and were suffered without her fault; and yet for a broken and dislocated ankle and a long period of mental and bodily distress she is given a bagatelle. Courts should be diligent to see that the law, which is itself reason and common sense, be applied with the aid of right reason to produce a reasonable result in the everyday affairs of life. The gravity necessary in the administration of justice to entitle the law to respect necessitates that mere caprice and practical jokes have no part or parcel therein, and it results that, if there was substantial unimpeached evidence upon which the jury could find that appellant was exercising due care and that respondent was negligent, this verdict, considering the grievous hurts of appellant, disturbs the moral sense, and should be brushed aside.

Respondent recognizes the delicacy...