Fleming v. Joseph F. McMahon Contracting Corporation

• Decision Date: 02 February 1932
• Docket Number: No. 21793.,21793.
• Citation: 45 S.W.2d 952
• Parties: FLEMING v. JOSEPH F. McMAHON CONTRACTING CORPORATION.
• Court: Missouri Court of Appeals

45 S.W.2d 952

FLEMING v. JOSEPH F. McMAHON CONTRACTING CORPORATION.

No. 21793.

St. Louis Court of Appeals. Missouri.

February 2, 1932.

Rehearing Denied February 17, 1932.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be officially published."

Action by Alice May Fleming against the Joseph F. McMahon Contracting Corporation. Verdict for plaintiff, and from an order sustaining defendant's motion for a new trial, plaintiff appeals.

Reversed and remanded with directions.

Thomas R. McGinnis and John H. Haley, both of St. Louis, for appellant.

George F. Heege, of Clayton, for respondent.

BENNICK, C.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff on May 24, 1929. Upon a trial of the issues, a unanimous verdict of the jury was returned in favor of plaintiff, and against defendant, in the sum of $3,750. Thereafter defendant's motion for a new trial was sustained by the court upon the ground of error in the giving of plaintiff's instruction No. 1; and from such order, plaintiff has duly appealed the case to this court.

The accident is alleged to have happened at or near a point on the sidewalk on the south side of Clayton road, approximately fifty feet east of Yale avenue, in Richmond Heights, Mo. Plaintiff is a young woman who attained her majority during the pendency of this action in the lower court, and who lived at the time of the accident with her parents at 6330 Clayton road.

At the time in question, defendant had a contract for the resurfacing of Clayton road; and in preparation for the work it had stacked up piles of reinforcing steel mats at different locations along the side of the street, one of which stood on a vacant lot opposite the point where plaintiff's injuries were received. The mats were ultimately to be put into the street to reinforce the concrete. Each mat was constructed of steel wires, about the size of a lead pencil, laid crosswise of each other at six-inch intervals, and then welded together by electricity; its dimensions were approximately seven by twelve feet, and its weight about one hundred fifty pounds; and the finished product had somewhat the appearance of a bed spring.

One of plaintiff's witnesses, who resided in the immediate neighborhood at 6356 Clayton road, testified that the pile of mats in question was built partly on the terrace, which slanted downward from a height of twelve or fourteen inches to a point about twelve inches back of the line of the sidewalk; and that on two or three occasions he observed that mats had slipped off the pile, and were lying on the sidewalk. Other evidence disclosed that the pile itself was from two and one-half to three feet in height.

Shortly before midnight on the night of May 24, 1929, plaintiff was on her way home, having alighted from a City Limits car at its regular stopping place at Clayton road. She testified that she was walking on the sidewalk along the south side of Clayton road; that the night was very dark; and that when she came to the point opposite the pile of mats, she stumbled over one or more of them lying upon the sidewalk, and was caused to fall, sustaining the injuries for which she has sued, and which seem not to have been in issue in the trial of the case.

Two members of the Richmond Heights police department testified that following the injury to plaintiff, they received a telephone call from her mother, advising them of the accident and its location; that upon an investigation, they found that the whole pile of mats had tipped over, and that at least two of the mats had slipped off the pile, and down upon the sidewalk; and that the two of them thereupon placed the mats back upon the pile.

The material portion of plaintiff's petition reads as follows:

"Plaintiff further states that on and about the 24th day of May, 1929, there was an open, public sidewalk along the south line of said Clayton road extending across said Yale avenue for a distance of more than 100 feet east of the intersection of said Clayton road and said Yale avenue; that said sidewalk as aforesaid was, on the 24th day of May, 1929, and for long periods before and after said date, much frequented by pedestrians walking thereon, all of which was well known at all times herein mentioned by the defendant, its servants and agents, or could have been known by them in the exercise of ordinary care; that although well knowing that said sidewalk was open and in constant use by pedestrians walking thereon, the defendant, by its agents and servants, negligently and carelessly caused, suffered, and permitted large quantities of reinforcing steel used by it in its construction work to be piled at an angle so close to said sidewalk at a point about 50 feet east of Yale avenue, that defendant knew, or could have known by the exercise of ordinary care, that the same was liable to slide, or be caused to slide, over and upon said sidewalk, without providing in or about it any light, signal, or giving any other warning to pedestrians walking upon said sidewalk of the presence of said reinforcing steel upon said sidewalk, and the same did slide or was caused to slide over and upon said sidewalk.

"Plaintiff further states that about 11 o'clock in the evening on or about May 24th, 1929, plaintiff was walking along and upon said sidewalk, in the dark, and not knowing or being warned in any manner of the presence of said steel upon said sidewalk, collided with and was struck by said reinforcing steel, resulting in plaintiff being thrown with great force and violence upon said steel and sidewalk, as a direct result of defendant's said negligence, she received painful, serious, and permanent injuries. * * *"

The answer was a general denial, coupled with a plea of contributory negligence that "in walking along on a sidewalk in the City of Richmond Heights, the plaintiff negligently failed to look and to watch where she was walking, and particularly for obstructions on said sidewalk, if any, when, by looking or watching, the plaintiff could have seen said obstructions, if any, and thus and thereby have avoided her injuries."

The reply was in the conventional form. Plaintiff's instruction No. 1, for the alleged error in the giving of which the new trial was granted, is as follows: "The Court instructs the jury that if you find and believe from the evidence in this cause that defendant, Joseph F. McMahon Contracting Company, piled the reinforcing steel mentioned in evidence near the sidewalk at the place where plaintiff fell (if you find she did fall), and that said reinforcing steel was near the said sidewalk used in public travel (if you so find), and if you find that said steel was negligently piled by defendant, and was likely to slide or be caused to slide over and upon said sidewalk, and that defendant knew, or could have known by the exercise of ordinary care, that same was likely to slide or be caused to slide over and upon said sidewalk, and that same did slide over and upon said sidewalk (if you so find), and that on the 24th day of May, 1929, at the place mentioned in evidence, that plaintiff, while in the exercise of ordinary care for her own safety (if you so find), struck said steel with her foot (if you so find), and was thrown down and injured (if you so find), then your verdict should be for plaintiff in such sum as you may find plaintiff is entitled to recover under the evidence and instructions in this cause."

The court gave, as its reason for holding the instruction bad, the fact that it did not contain all the affirmative matters necessary for a recovery, and that defendant's...