Graney v. The City of St. Louis

• Decision Date: 03 November 1897
• Citation: 42 S.W. 941,141 Mo. 180
• Parties: Graney, Appellant, v. The City of St. Louis
• Court: Missouri Supreme Court

42 S.W. 941

141 Mo. 180

Graney, Appellant, v. The City of St. Louis

Supreme Court of Missouri, First Division

November 3, 1897

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Reversed and remanded.

A. R Taylor for appellant.

(1) The court erred in declaring as a matter of law the plaintiff could not recover. (2) The fact that plaintiff knew that the sidewalk was out of repair and defective, it being in the nighttime when she was passing over the sidewalk, did not as a matter of law make her guilty of contributory negligence in undertaking to pass over the sidewalk. Loewer v Sedalia, 77 Mo. 444; Maus v. Springfield, 101 Mo. 618; Flynn v. Neosho, 114 Mo. 572. As this was the only conceivable ground for the action of the lower court, if the above cited cases are the law of this State, there ought to be a reversal. (3) It is no defense to the city that a part of the sidewalk in question was passable. Walker v. Kansas City, 99 Mo. 652; Roe v. Kansas City, 100 Mo. 193.

W. C. Marshall for respondent.

(1) The instruction for a nonsuit was properly given by the circuit court. Cohn v. Kansas City, 108 Mo. 387; Smith v. St. Joseph, 45 Mo. 449; Loewer v. Sedalia, 77 Mo. 431; 2 Shear. & Red. on Neg. [4 Ed.], sec. 376. (2) One who attempts to cross over a sidewalk as part of a road, known to him to be dangerous, when the dangerous place could have been easily avoided, as by passing around it, or taking another side of the road, is wanting in due care, and the court may so say as a matter of law. Erie v. Magill, 101 Pa. St. 616; Gosport v. Evans, 112 Ind. 133; Centralia v. Krouse, 64 Ill. 19. (3) A foot-passenger on the sidewalk of a city street, who, with full knowledge of the dangerous character of an obstruction on the pavement, deliberately attempts to walk over it when he could have avoided it by a slight detour into the street, and who falls and is injured in such attempt, is guilty of contributory negligence per se. McKee v. Bidwell, 74 Pa. St. 218; Baker v. Fehr, 97 Pa. St. 70; Schaefler v. Sandusky, 33 Ohio St. 246; Quincy v. Barker, 81 Ill. 300; Evans v. Utica, 69 N.Y. 166; Wilson v. Charlestown, 8 Allen (Mass.), 137; Coates v. Canaan, 51 Vt. 131; Massey v. Columbus, 75 Ga. 658; Daniels v. Lebanon, 58 N.H. 284. (4) The law precludes a recovery "in a case where, by taking another side of the road, the defect might have been easily avoided." Carolus v. N. Y., 6 Bosw. 15; James v. San Francisco, 6 Cal. 528; Hubbard v. Concord, 35 N.H. 52; Packard v. New Bedford, 9 Allen, 200; Horton v. Ipswich, 12 Cush. 488; Congdon v. Norwich, 37 Conn. 414; Parkhill v. Brighton, 61 Iowa 103.

OPINION

Robinson, J.

This action was instituted by plaintiff against the city of St. Louis to recover damages for an injury sustained by her while walking along one of the sidewalks of said city. The petition alleged that on the morning of April 25, 1889, the plaintiff, while walking along the west sidewalk of Van Buren, an open street of the city, at a point near her home, she was tripped and thrown violently to the ground by reason of an iron pipe or water meter that was placed thereon, by the consent of the city, and that was left exposed so as to protrude several inches above the level of the walk, on account of the pavement immediately adjacent thereto being removed, torn away, and negligently allowed to remain out of repair. That said pipe or water meter and sidewalk in its then condition dangerously obstructed passage along the walk at the time and place of her injury, and rendered such passage unsafe for persons walking thereon particularly in the nighttime; that said sidewalk had been maintained in its dangerous condition with the knowledge and consent of the defendant for a long time prior to the injury herein complained of and after the lapse of a reasonable time within which to repair the same; that without fault or negligence on her part she fell over said pipe or water meter and fractured one of the bones of her leg and otherwise injured herself to her damage in the sum of $ 5,000, etc. The answer filed was a general denial and a plea of contributory negligence. To the plea of contributory negligence a general denial was filed. At the conclusion of the testimony offered in behalf of plaintiff the court gave an instruction that "upon the pleadings and evidence the plaintiff was not entitled to recover," and plaintiff was forced to take a nonsuit with leave to move to set the same aside. The plaintiff's motion being unsuccessful, her appeal, after the usual preliminaries, has reached this court.

Just what reason prompted the instruction given by the court is only to be gained by the contention now made by the counsel for defendant to sustain the court's action. But from any standpoint from which the facts of the case may be viewed, to us the instruction seems erroneous. No dispute is made by counsel of the city's duty to keep the sidewalk at the place where the plaintiff claimed to have been injured, in a condition of reasonable safety for pedestrians, called upon to use the same by night as well as by day; nor is it contended that the walk is not out of repair or defective; but council now contends that plaintiff was guilty of contributory negligence according to her own showing in attempting to pass along a sidewalk known to her to be out of repair; and second, that the law precludes a recovery in a case where it is shown that by taking the other side of the street the plaintiff might have easily avoided the injury. Neither contention under the facts of this case can be sustained.

While the plaintiff in this case does testify that she was well acquainted with the sidewalk on which she was injured, and that she had known of its defective condition for a number of years and could have observed its...