Hart v. City of Butler

• Decision Date: 13 September 1965
• Docket Number: No. 50844,No. 1,50844,1
• Citation: 393 S.W.2d 568
• Parties: Ruby HART, Plaintiff-Respondent-Appellant, v. CITY OF BUTLER, Missouri, a Municipal Corporation, Defendant-Appellant, and Fraternal Building Association, a Corporation, Defendant-Respondent
• Court: Missouri Supreme Court

Page 568

393 S.W.2d 568

Ruby HART, Plaintiff-Respondent-Appellant, v. CITY OF BUTLER, Missouri, a Municipal Corporation, Defendant-Appellant, and Fraternal Building Association, a Corporation, Defendant-Respondent.

No. 50844.

Supreme Court of Missouri, Division No. 1.

Sept. 13, 1965.

E. J. Murphy, Butler, for plaintiff-appellant.

James E. Woodfill, Robert L. Ewing, Ewing, Ewing, Ewing, Carter & Wight, Nevada, for appellant, City of Butler.

John M. Belisle, Harold A. Kyser, Belisle, McNabb & Kyser, Butler, for defendant-respondent Fraternal Bldg. Ass'n.

HENLEY, Judge.

Action for damages for personal injuries against three defendants: City of Butler, Fraternal Building Association and Ben Dyer. The first two named will be hereinafter referred to as the City and the Association, respectively. Judgment in accordance with the verdict of a jury was for plaintiff for $25,000 against the City and the Association, and for the defendant, Ben Dyer. A motion of the City for judgment in accordance with its motion for directed verdict or, in the alternative, for a new trial was overruled and the City appeals. A like motion of the Association was sustained, judgment against the Association was set aside, and judgment entered in its favor. In the alternative, the Association was granted a new trial on the ground that the judgment against it was against the weight of the evidence. Plaintiff appeals from the latter judgment and order.

This court has jurisdiction for the reason the amount involved is in excess of $15,000. Sec. 3, Article V, Constitution of Missouri, V.A.M.S.

The defendants, Fraternal Building Association, a corporation, and Ben Dyer are the owner and lessee, respectively, of the Inn Hotel building in the City of Butler. Plaintiff's petition charged the three defendants with negligence in maintaining a sidewalk alongside the hotel building in a dangerous and defective condition by permitting the walk to be obstructed by an iron pipe or rod extending horizontally across and immediately above an iron grating imbedded in the walk, over which pipe plaintiff allegedly tripped and fell to her injury. The separate answers of defendants were a general denial and a plea of contributory negligence. It is admitted that the walk is a public sidewalk of the city and that plaintiff fell thereon on the date hereinafter mentioned.

On the bright spring afternoon of April 18, 1963, at about 1:30, plaintiff and her friend, Eunice Pyle, were walking home from the downtown area of the City of Butler. Their route took them west along the south side of Chestnut Street on the sidewalk adjoining the north wall of the Inn Hotel. Both had walked over this sidewalk before and knew that iron gratings were imbedded in the walk next to the building. These iron gratings were originally constructed to furnish light and ventilation to the basement and extended out a little over two feet from basement windows and the building wall. The sidewalk, including the grating, was five feet wide. As they walked west on this sidewalk Miss Pyle was on Miss Hart's right and nearest the street. They were talking as they walked abreast, and as they neared the gratings Miss Hart dropped back of her companion to afford more room on the walk. They thus passed the first two gratings but at the third plaintiff tripped and fell receiving an injury to her left shoulder and arm and other injuries which will be discussed later.

Plaintiff identified the object on which she tripped as being an iron rod or pipe extending across and above one of the iron gratings as shown in her exhibit No. 2. This exhibit, a photograph taken with the camera at sidewalk level pointed in the direction the ladies were walking, depicts the object identified by her as the object over which she tripped, its location and position, and the area of her fall better than we can in words, hence we reproduce it:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The iron pipe and the grating are described as being of the same general color, both rusty; the pipe was about three feet long and extended out a little further from the building than the grating. The pipe and its base are described as a standard of the type commonly used as a pedestal for movable 'stop' signs. The described diameter of the base is about 27 inches and the pipe about 4 inches. A question asked of a witness implies that the base had utility value as a windbreak for the basement window, but an objection was sustained to that question and this theory was not pursued further; there is no evidence the standard or pedestal was used as a part of the building, or was in any manner attached to the building as a part thereof. How, why, and when it reached this location and position is not shown. Coal for the furnace was put in the basement from this side of the building, but at an opening west of this point. A witness for the city said he removed this pedestal from the roof of the hotel in about 1961 and placed it upright in the parkway between the sidewalk and curb. He indicated it had possibly been used on the roof as part of a radio or television antennae. In March, 1963, this witness saw it sitting in the parkway about thirty feet from the west end of the building.

Charles Thomure of Butler, publisher of the weekly Bates County Shopper, testified he frequently passed this spot enroute to the Post Office to mail his publications and first saw the pipe in the position shown in the photograph in the winter of 1962-63, probably February, 1963. He stumbled over the pipe in February and fell. He saw the pipe in this position several times both before and after his fall, and had never seen it standing upright during that time.

Wayne Hanchey of Butler, testified that he had seen the pipe and base in the position shown in the photograph possibly a half-dozen times beginning in the winter of 1962-63; that the grate, the pipe and base were a rust color and tended to blend together.

Roy Winegardner, Superintendent of Utilities of the City of Butler, testified he saw this base and pipe standing upright in the parkway after plaintiff's fall.

E. J. Campbell, President of the Association and chairman of its building committee, testified that he saw the pipe and its base in the position shown in the photograph a day or two after he heard of Miss Hart's fall.

Mrs. Roberta Schnobelin worked in the Farm Bureau office located at the northeast corner of the Inn Hotel building. It was to this lady that Miss Pyle rushed for assistance for her companion. Mrs. Schnobelin got her automobile, helped the plaintiff get up from where she had fallen and took the two ladies to Miss Hart's home. Mrs. Schnobelin testified that she had first seen this pipe and its base in the winter of 1962-63; that in the wintertime she usually parked her car on the north side of this building; that she had seen this pipe and base in the position shown in the photograph more than once between that winter and April 18, 1963; that she had also seen it in an upright position sitting on the grating, not in the parkway; that it was in the position shown in the photograph when she assisted the plaintiff after her fall; that it was not attached to the hotel building.

The plaintiff testified that before her fall she saw the pile of dirt shown in the photograph and it distracted her attention somewhat; that she was watching where she was going, but did not see the pipe before she tripped over it.

There was nothing to block or obstruct the view of the sidewalk by the two ladies.

In its first point the City says the court erred in overruling its motions for a directed verdict filed at the close of the plaintiff's case and at the close of the whole case, because: (1) there was no substantial evidence plaintiff stumbled and fell over the iron pipe as alleged in her petition; therefore, she failed to prove causation; (2) there was no evidence a condition existed at this location not reasonably safe for use by the public and that the City had knowledge of such condition in time to have remedied it; and, (3) the evidence shows plaintiff was guilty of contributory negligence as a matter of law.

Plaintiff alleged, and submitted in her verdict directing instruction, that the pipe described in the evidence was the cause of her fall. Was there substantial evidence that this was the cause ? We think so. In determining this question, we review the evidence in the light most favorable to the plaintiff, giving her the benefit of all reasonable inferences to be drawn therefrom and disregard the City's evidence, unless it aids plaintiff's case. Douglas v. Douglas, Mo., 255 S.W.2d 756. The evidence of causation must be substantial. Tharp v. Monsees, Mo., 327 S.W.2d 889, 893. A verdict may not be permitted to rest on speculation or guesswork as to negligence or cause. Gregory v. Robinson, Mo., 338 S.W.2d 88, 91; Davison v. Hennegin, Mo., 304 S.W.2d 836, 839. The City argues that the evidence tends to support inconsistent inferences and other possible causes and that there is no direct evidence that this pipe caused plaintiff to fall; that plaintiff has failed to remove the cause of her fall from the realm of speculation and guesswork. It endeavors to support this argument with a reference to her testimony, pointing to her answer to this question: 'Do you remember stepping on any grates?' The answer being: 'Possibly I did the second one or the one in the middle, the one I fell over.' The City also points to a later answer in which she stated, '* * * I probably could have been walking on the sidewalk and possibly could have been partially on the grating.' The City contends in this argument that it is just as reasonable to infer that she tripped over the grating or some other defect in the sidewalk. There was no evidence of 'other defects' in the sidewalk. A reasonable inference does not follow that the grating may have been the cause of her fall merely because she said she...