Heather v. City of Palmyra

• Decision Date: 06 November 1922
• Docket Number: No. 14450.,14450.
• Citation: 245 S.W. 390
• Parties: HEATHER v. CITY OF PALMYRA.
• Court: Missouri Court of Appeals

245 S.W. 390

HEATHER v. CITY OF PALMYRA.

No. 14450.

Kansas City Court of Appeals. Missouri.

November 6, 1922.

Rehearing Denied December 4, 1922.

Appeal from Circuit Court, Macon County; Vernon L. Drain, Judge.

"Not to be officially published."

Action by Julia Tipton Heather against the City of Palmyra. Judgment for plaintiff, and defendant appeals. Affirmed.

F. Culler, of Palmyra, and Franklin & Van Cleve, of Macon, for appellant.

Otho F. Matthews and E. S. Jones, both of Macon, Berryman Henwood, of Henniabal, Ben F. Glahn, of Palmyra, and Rendlen & White, of Hannibal, for respondent.

TRIMBLE, P. J.

Plaintiff's action is for damages caused by a fall upon a sidewalk in the city of Palmyra. She obtained a verdict for $7,000, on which judgment was rendered, and the city appealed.

The sidewalk was on the west side of Main street (running north and south), in a very busy portion of the city; much business being transacted there and many pedestrians constantly passing thereover. By city ordinance, the sidewalk at this place was required to be 11 feet wide and to be made of either sawed stone or granitoid. In accordance therewith, that part of the sidewalk in front of the Berghofer Hardware Store (the scene of plaintiff's fall) was constructed of sawed slabs of Bedford stone each 4 or 5 feet wide and 11 feet long laid east and west so that the length of the slabs constituted the width of the sidewalk.

A gasoline filling station was operated in front of this store, the tank therefor being buried under the sidewalk, and the pump, over 8 feet tall, stood at the east edge of the sidewalk and about 10 inches inside of the south line of the area in front of the store. Not far from the pump and just over the gasoline tank was a hole, not round but slightly longer than it was wide (about 6½ by 8 inches), cut into the stone sidewalk. From the buried tank the filling tube extended upward to this opening, the end of the tube, however, being 2 5/8 inches below the surface of the sidewalk. When the tank was not being refilled, the hole in the sidewalk was covered with a loosely fitting lid made of two sheets of thin metal—galvanized iron—riveted together in the central portion thereof; " the sheets being of such size that they extended beyond the edges of the hole for a distance of some 2½ inches or more. Fastened to the underside of this lid were two blocks of wood having a total thickness of 2 3/8 inches which, it will be observed, lacked a quarter of an inch of reaching to the top of the filling tube. So that, although these blocks on the underside of the metal lid were for the purpose of holding the lid in place, they were ill designed to accomplish this and failed to do so, inasmuch as they did not fit the hole securely; and as they did not rest on the upper end of the filling tube, any weight or pressure of a pedestrian's foot on the lid would cause it to sink down in the central portion thereof, thus causing the outer flange of the lid to curve or cup up. As the diameter of the hole was larger than the size of the blocks, the lid could be pushed or jostled about, though the weight of the blocks did hold the lid over the hole.

Plaintiff in passing along over the sidewalk caught the toe of her shoe under this turned-up edge of the metal lid, causing her to stumble and go forward several feet in a vain endeavor to regain her ecuilibrium and then fall, striking her knee upon the edge of the stone curb, severely injuring the kneecap, and twisting her spine.

It is urged that the demurrer to the evidence should have been sustained. This point cannot be sustained on the ground that plaintiff was conclusively guilty of contributory negligence. The evidence discloses that she was proceeding along the sidewalk looking In front of her, and, while not looking down to the ground observing every spot whereon she placed her feet, yet she was proceeding in an ordinarily careful manner. It was about 7 o'clock in the evening of February 7, 1921, and while the place was lighted, and if she had looked directly at the spot where she set her foot when her toe caught under the lid she might have seen the lid—though it is by no means certain she would have observed that it was cupped up so as to be likely to catch her toe. She lived only a few blocks from the scene of her injury and had been along this sidewalk many, many times before, but her evidence shows that she had never observed the lid until she was thrown by it. She had sat in automobiles being filled with gasoline from the pump 8 feet distant from the lid, but during these times no use of the intake was made, so that her attention was not called to the hole covered by the lid. The question of whether plaintiff was in the exercise of reasonable care was clearly one for the jury, and we would be wholly unjustified in declaring as a matter of law that she was negligent. Hebenheimer v. City of St. Louis, 269 Mo. 92, 101, 189 S. W. 1180; Drake v. Kansas City, 190 Mo. 370, 379, 88 S. W. 689, 109 Am. St. Rep. 759; Wasson v. Sedalia (Mo. App.) 236 S. W. 399, 400.

The evidence is ample to support the finding that plaintiff fell over the lid, that her toe caught under the curved-up edge thereof, and caused her to fall. The demurrer could not be sustained upon that ground.

Nor can lack of notice to the city be invoked for that purpose. The hole and the lid thereon were constructed and put in the sidewalk some two years or more before plaintiff's fall. The evidence shows that the lid fitted loosely over the hole, and the edge of the thin metal was caused to turf: up by the pressure of the traffic on the unsupported central portion thereof, and, persons had stumbled over it long before plaintiff did. Besides, the negligence charged is not that with reference to something that was originally all right but afterwards became defective in some way. The city authorized and permitted the hole to be cut in the sidewalk and to be covered in the way that it was; and the charge in the petition was that the contrivance covering the hole was structurally defective, so that the street was rendered dangerous and unsafe, in that the lid was not properly supported, nor was the hole filled snugly, but the thin sheet of metal was allowed to rest loosely over the hole and in such manner as to cause the, thin edge of the metal to curl up, thereby presenting a dangerous obstruction, and defendant was negligent in permitting such dangerous condition to remain in said sidewalk. In other words, the defect pleaded was a structural defect and the case was tried upon that theory. The city, therefore, land notice from the time of the creation of the hole and its covering, and for two years allowed this condition to remain wherein at any moment it was likely to cause serious injury. In such case, liability cannot be avoided an the ground that the city was without notice. Mehan v. City of St. Louis, 217 Mo. 35, 46, 47, 116 S. W. 514; Hebenheimer v. City of St. Louis, 269 Mo. 92, 99, 189 S. W. 1180; Drake v. Kansas City, 190 Mo. 370, 379-383, 88 S. W. 689, 109 Am. St. Rep. 759.

Plaintiff's instruction No. 1. is not open to the charge that it ignores the defense of contributory negligence, for it repeatedly required the jury to find that she was in the exercise of ordinary care as one of the necessary prerequisites to entitle her to a verdict. Nor did it fail to tell the jury that the...