Gray v. City of Hannibal

• Decision Date: 07 April 1930
• Docket Number: 28887
• Citation: 29 S.W.2d 710
• Parties: GRAY v. CITY OF HANNIBAL
• Court: Missouri Supreme Court

29 S.W.2d 710

GRAY v. CITY OF HANNIBAL

No. 28887

Supreme Court of Missouri, Second Division

April 7, 1930

Appellant's Motion for Rehearing Overruled June 11, 1930.

John G Cable, of Hannibal, W. W. Barnes, of Paris, and Mahan, Mahan & Fuller, of Hannibal, for appellant.

Reandlen White & Rendlen, of Hannibal, for respondent.

OPINION

DAVIS, C.

This is an action by plaintiff for damages for personal injuries alleged to have been caused by the negligence of defendant in maintaining a defective sidewalk. The jury returned a verdict in favor of defendant. The trial court, however, set aside the verdict and sustained plaintiff's motion for a new trial. Thereupon defendant appealed.

The evidence adduced in behalf of plaintiff warrants the finding that, on March 3, 1926, between 2 and 3 o'clock in the afternoon, while traversing, in the city of Hannibal, a concrete walkway, running from the main sidewalk to Broadway, near a water trough or fountain, she stepped into a hole in said walkway and fell and suffered serious injuries. Broadway runs east and west and Fifth street north and south, intersecting at right angles. About thirty feet east of Fifth street the city maintains a water trough or fountain, the trough projecting over the curb into Broadway to permit horses to drink. A cement platform about three feet four inches in width was constructed, which ran parallel with the curb for a distance of approximately fifteen feet east and fifteen feet west of the trough. A concrete walkway, about five feet in width, runs from the cement platform, in juxtaposition with the trough, to the main sidewalk, which is about eleven feet wide. Between the cement platform and curb and the main sidewalk is a grass parking space about eight feet wide. The walkway lies parallel with Fifth street and runs from Broadway to the main sidewalk. The main sidewalk and the walkway intersect on the level, but between the main sidewalk and curb is a step of eight or ten inches in depth. This step was near the water plugs, hole, and pipe later mentioned. Prior to March 3, 1926, this walkway or sidewalk was constantly used by people or pedestrians in passing from the main sidewalk to Broadway, not only for the purpose of crossing to Broadway for general purposes, but for the purpose of catching street cars and busses. This location was in the central business district of Hannibal.

In the walkway, which leads from the main sidewalk to Broadway past the trough, there were, near the trough, three water plugs or stops. They have the appearance of what one witness called water boxes. One of these plugs was an open hole, around which the concrete had disintegrated, thus permitting the existence of a hole or depression about six inches in diameter. Out of this hole in warm weather grew grasses. Another hole had a cap over it and was flush with the sidewalk. From a third hole a pipe extended three or four inches above the concrete. These conditions existed for some months prior to March 3, 1926. Plaintiff, while proceeding east along the north main sidewalk of Broadway, because of a storm, decided to return home. At that moment she observed a street car approaching on Broadway, going west. Without observing and without knowledge of the hole, or the pipe projecting above the walkway, and, having seen others use the walkway, she proceeded along the walkway to hail the street car. While watching the car and while traversing the walkway at her usual gait, she stepped into the hole or depression in the walkway near the trough, and, becoming unbalanced, her foot struck the projecting pipe, and she was thrown against the step in the walkway, breaking the femur bone near the hip.

The following are excerpts from plaintiff's testimony:

'I had started down in town and I changed my mind and turned right down by the watering trough to get the street car to go back home and I stepped down in a hold in an open pipe. It unbalanced me and I caught for the trough, stepped on protruding pipe, threw me backwards and I fell on the concrete step. * * *

'Before I stepped into this hole that I have described I did not know that it was there. I had never gone close to this particular place before. I had seen people going over there, go across to get the car, that is what I started to do. I was walking in my usual and ordinary mode as I went toward the car, was not running. I was walking slow. It was snowing. It was close to the trough where the men picked me up. I don't know how close I was. * * *

'My right heel went into the open pipe, unbalanced me. I caught for the trough and stumbled, stepped on a protruding pipe, threw me backwards and I fell on the concrete step. My foot went into one of these pipes shown on the picture and then my other foot stumbled on a protruding pipe there and that threw me backwards and I fell on the concrete step. I had just stepped down the step there.'

One witness for plaintiff said: 'I never paid much attention to these holes or the stone pipe, but I knew they were there. Never charged my mind with it at any time. They were in plain view of anyone who walked along there.'

Another witness for plaintiff stated, in substance, that it was natural for him to look and see the obstructions and pipes because he repaired such things for the city. He had no trouble as he passed in his car or walked by to see the holes and pipes in the walkway. He said he just could not help seeing them; that the pipes and holes were so plain and evidence that he had no trouble at all in seeing them in a very detailed way.

We need not summarize defendant's evidence further than to say that it shows that on March 2, 1926, a trace of snow had fallen in Hannibal, less than one-hundredth of an inch, and that on March 3, 1926, two-tenths of an inch fell.

I. Defendant maintains that a demurrer to the evidence should have been sustained by the trial court, and that this court should now declare that as a matter of law plaintiff cannot recover. Two theories to support their contention are urged: First, that the record contains no evidence tending to show that defendant was negligent; second, that plaintiff's negligence precludes as a matter of law a recovery.

In determining whether plaintiff made a submissible case, the defendant's evidence will be disregarded, except as such evidence may tend to aid plaintiff. Conversely, plaintiff's evidence will be regarded as true, and every reasonable inference that tends to aid plaintiff must be drawn from it. If the evidence taken as a whole tends to show that defendant was negligent, and if either the evidence taken as whole or reasonable inferences from it tends to show that plaintiff was not negligent, then an issue of fact is raised and a submissible case made for the determination of the jury. Doody v. California Woolen Mills Co. (Mo. Sup.) 274 S.W. 692.

(a) As to Defendant's Negligence -- It is a general rule that a municipality, within its corporate limits, is liable in damages for injuries sustained for failure to use reasonable care to keep its streets and sisewalks in a reasonably safe condition for vehicles and pedestrians in traveling over them. Conner v. Nevada, 188 Mo. 148, loc. cit. 156 86 S.W. 256, 107 Am. St. Rep. 314; Reedy v. Brewing Ass'n., 161 Mo. 523, loc. cit. 536, 61 S.W. 859, 53 L. R. A. 805. That the city of Hannibal constructed and controlled the walkway leading from the main sidewalk to Broadway, and over which plaintiff was walking when she stepped into the hole...