Hartkopf v. Elliott

• Decision Date: 17 November 1936
• Parties: G. A. Hartkopf, Appellant, v. Wilson Elliott and City of St. Louis
• Court: Missouri Supreme Court

99 S.W.2d 25

339 Mo. 1009

G. A. Hartkopf, Appellant, v. Wilson Elliott and City of St. Louis

Supreme Court of Missouri

November 17, 1936

Appeal from Circuit Court of City of St. Louis; Hon. O'Neill Ryan, Judge;

Appeal dismissed.

Edwin A. Smith for appellant.

The court erred in giving its instructions in the nature of demurrers at the close of the plaintiff's case in chief. Smith v. St. Joseph, 35 S.W.2d 975, 225 Mo.App. 886; Fockler v. Kansas City, 94 Mo.App. 464, 68 S.W. 363; Coffey v. Carthage, 186 Mo. 573, 85 S.W. 532, 200 Mo. 616, 98 S.W. 562; Merritt v. Kinloch Tel. Co., 215 Mo. 299, 115 S.W. 19; Woodson v. Met. St. Ry Co., 224 Mo. 685, 123 S.W. 820; Riley v. Kansas City, 161 Mo.App. 290, 143 S.W. 541; Poumeroule v Postal T. & T. Co., 167 Mo.App. 533, 152 S.W. 114, Id. 178 Mo.App. 357, 165 S.W. 1174; Hutchinson v Mullins, 189 Mo.App. 438, 176 S.W. 1083; Jackson v. Sedalia, 187 S.W. 127; Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L. R. A. 1915F, 797; McKimmon v. Birmingham, 196 Ala. 56, 71 So. 463, 75 So. 487; Corcoran v. New Haven, 108 Conn. 63, 142 A. 569; Davis v. Rome, 137 Ga.App. 762, 142 S.E. 171; Brennan v. Streator, 256 Ill. 468, 100 N.E. 266; Shreve v. Fort Wayne, 176 Ind. 347, 96 N.E. 7; Hearn v. Waterloo, 185 Iowa 995, 169 N.W. 392.

Alphonso Howe and William H. Allen for Wilson Elliott; Edgar H. Wayman and Louis A. McKeown for City of St. Louis.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Action for damages for personal injuries. We shall refer to appellant and respondents, respectively, as plaintiff and defendants. At the close of plaintiff's evidence the court gave peremptory instructions directing verdicts in favor of each defendant. Plaintiff thereupon took an involuntary nonsuit with leave to move to set the same aside. Such motion was duly filed and was overruled and plaintiff appealed.

Defendant Elliott owned an apartment building situated on the north side of McPherson Avenue, an east and west street in a residential part of the city of St. Louis. The central portion of McPherson Avenue was paved for vehicular traffic with a curb at the north side of the pavement. North of and adjacent to said curb there was a parkway or grass plot, eight to ten feet wide, and immediately north of that grass plot, adjacent to the property line which constituted the north boundary line of the street, there was a concrete sidewalk some six feet or more wide. Extending from said sidewalk south to the curb (across the parkway) there was a concrete walk about eight feet wide. This walk was in front of Elliott's apartment house. We shall refer to this walk as the concrete walk, to distinguish it from the above mentioned sidewalk along and adjacent to the property line on the north side of the street. The grass plot referred to extended eastward and westward from Elliott's building, in front of residential buildings on each side of Elliott's. Its purpose was evidently for ornamentation of the street and the abutting properties.

About ten years before the accident involved herein Elliott had erected in the grass plot above described an iron railing for the purpose of protecting the grass plot. It was located eighteen or twenty inches north -- that is inside, toward the property line -- of the curb. It was a substantial, solid railing, consisting of a two inch gas pipe supported by uprights of the same size and material set firmly in the ground. The railing was eighteen or nineteen inches high. It was well constructed and was maintained in good condition. It paralleled the curb to the alley east of Elliott's property, turning there northward along the alley line and across the parkway or grass plot to near the edge of the sidewalk, so as to keep pedestrians from walking across the grass plot -- which was the purpose of the railing. The evidence tends to show that the city had actual or constructive knowledge of the erection and maintenance of the railing and permitted its maintenance.

On the night of plaintiff's injury he had attended a party at the apartment of a friend living in Elliott's apartment building. The party broke up about one o'clock A. M. and plaintiff left to go home. There were a number of automobiles parked in the street next to the north curb, one of which was in front of the concrete walk. In order to get around that car plaintiff, instead of following the concrete walk to the curb, walked across the grass plot and against the railing, falling onto the pavement and breaking his elbow. He testified that he did not see the railing and did not know it was there, though he did not say he was looking or that he could not have seen it had he been observing. There was some evidence to the effect that the automobiles at the curb tended to shut off the light from a street light somewhat east of the place where plaintiff fell and on the opposite side of the street. There was, however, a good electric street light on the north side of the street, just inside the curb line, about sixty feet west of the place where plaintiff fell. In the parkway or grass plot, between said last-mentioned light standard and said concrete walk there were two or three small sycamore trees. They were farther north than the light standard, being about four feet from the curb. Neither the testimony of witnesses nor the photographs introduced in evidence show that the trees prevented the rays of said street light falling upon the railing at the place where plaintiff fell over it. Some of plaintiff's witnesses said that it was difficult to see the railing at the time in question because of insufficiency of light, but admitted that it could be seen when a person got close to it.

Plaintiff's petition charges defendant city with negligence in permitting Elliott to erect and maintain the railing when it knew or should have known that persons would likely cross the street, "in front of said apartment house" in the nighttime, when automobiles would likely be parked at the north curb, casting a shadow upon and about the railing and thus rendering it unnoticeable. Like negligence is charged against Elliott for having erected and maintained the railing and against him it is further charged that he thereby created a nuisance within the meaning of a pleaded city ordinance.

The separate answers of the defendants each denied generally the allegations of the petition and charged negligence on the part of plaintiff, specifying same and averring that whatever injuries, if any, he received were due to his own negligence.

For the disposition we feel obliged to make of the case the foregoing outline of the facts is sufficient.

Respondents have filed a motion to dismiss the appeal because of appellant's failure to comply with our Rule 15, which requires that the appellant's brief "shall distinctly allege the errors committed by the trial court" and shall contain in addition "(2) a statement, in numerical order, of the points relied on, with citation of authorities thereunder." By Rule 16 the failure of an appellant in a civil case to comply with Rule 15 (and certain others) results in dismissal of the appeal or, at the option of the respondent, continuance of the cause.

In his brief appellant makes the following "Assignments of Errors:"

"1. The Court erred in giving its instructions in the nature of demurrers at the close of the plaintiff's case in chief.

"2. The Court erred in requiring the plaintiff to take an involuntary nonsuit at the close of the plaintiff's case in chief, upon the Court's giving instructions in the nature of demurrers at the close of the plaintiff's case in chief.

"3. That the action of the Court is against the law as applied to the evidence in this case, and against the law as set out in the instructions given by the Court in the nature of demurrers at the close of the plaintiff's case in chief."

Under ...