Hicks v. Vieths
| Decision Date | 21 December 1931 |
| Docket Number | 30013 |
| Citation | 46 S.W.2d 604 |
| Parties | HICKS v. VIETHS et al |
| Court | Missouri Supreme Court |
Rehearing Overruled February 11, 1932.
J. L London and Lee J. Placio, both of St. Louis, for appellant.
Joseph N. Hassett and Ernest E. Baker, both of St. Louis, for respondents Vieths and others.
Julius T. Muench and Leonard J. Holland, both of St. Louis, for respondent City of St. Louis.
Plaintiff alleges he was injured on the 2d day of May, 1927, when he stepped on the covering or lid of a coalhole in a public sidewalk in the city of St. Louis, and said lid, being loose and defective, moved out of place, causing him to fall to the sidewalk and 'into said coal hole' and suffer injuries to his left leg, right ankle, foot, and back. The coalhole served the building and premises designated as 900 N. Broadway, owned, controlled, and maintained by the defendants Vieths, Allen, and Neuhoff as trustees under the will of C. B. Allen, deceased, and was located in the public sidewalk abutting that property. Negligence is charged against defendants city of St. Louis and the above-named trustees in the maintenance of the coalhole and covering or lid thereof; permitting said lid or cover to become and be loose and insecure; failing to repair same; and failing to provide a suitable, adequate, and safe covering. Plaintiff asked damages in the sum of $ 25,000. Defendants answered with a general denial and a plea of contributory negligence. The verdict of the jury was for defendants, and plaintiff appealed.
The building at 900 N. Broadway was at the northeast corner of the intersection of N. Broadway and Franklin streets. The first floor was used as a restaurant. The entrance opened upon both streets. There was a manhole in the sidewalk about a foot from the outer edge of the sidewalk and almost directly in front of the entrance to the restaurant. There were three coalholes about the center of the sidewalk which runs north and south on the east side of N. Broadway and abuts the building designated as 900. These coalholes were in line running north and south along this portion of the sidewalk. Measuring north the first of the three coalholes is 23 feet from the intersection, the second is 10 feet north of the first, and the third 8 feet north of the second. Each of these coalholes was about 2 feet in diameter, and equipped with an 'iron flange,' into which a heavy iron cover or lid fitted, so that same was level with the surface of the sidewalk. The sidewalk was 15 feet wide. Appellant was employed by the Hobart Manufacturing Company, which had formerly occupied the building at 904 N. Broadway. The company had moved to another location, and had subleased the building at 904 to the proprietor of the restaurant conducted at 900 N. Broadway, as a part of the property at 900 N. Broadway had been condemned by the city for the purpose of widening Franklin street. Appellant testified that at about 9 o'clock on the 2d day of May he went to the building at 904 to see about certain repairs being made there, then to the restaurant to deliver the key for 904, and, as he was returning to that building and traveling north along the sidewalk, he stepped upon the cover or lid of the second coalhole, and 'it slid from under him and his left leg went through, crumpling his right leg and hip up under him.' Two men, whom he did not know, and whose names he did not ascertain, assisted him into the restaurant. This was a much-traveled public sidewalk. Appellant had worked at 904 for ten months immediately prior to that date, and had often traveled over the sidewalk at this point. He had never noticed any defects or looseness in the covering on these coalholes. After he fell, he neither made nor caused any inspection to be made as to the condition of the hole or the lid which he says caused the fall. Only one witness testified to seeing the accident. His testimony was that he worked at 908 N. Broadway; that he was standing on the sidewalk in front of that building, saw appellant walking north along the sidewalk and noticed that 'all of a sudden he fell down and his right leg doubled up, but I could not see his left leg, it had gone into the coal hole.' The witness did not go to appellant's assistance, but went on to his place of work, and 'never paid much attention to it' and never told any one about seeing the accident until a few days before the trial, which was in December, 1928. This witness also testified that 'two or three times' in 1925, and he 'judged' also in 1926, he had noticed a 'little shift' and 'a play' in the covering or the lid of the second coalhole, and he 'stayed leary of it.' This was all and the sole testimony as to looseness in the covering or lid. The respondents offered testimony tending to impeach this witness. For defendants (respondents), the proprietor of the restaurant testified that appellant came back into the restaurant and stated that 'he fell down outside' and 'that he fell in a coal hole,' but this witness understood appellant to refer to the manhole directly in front of the entrance. He testified further that appellant showed him 'his foot and leg' and 'he was scratched a bit.' This witness said that he walked 'on the lids' of these coalholes 'all the time,' but had not noticed anything wrong with them. Report having been received at the district police station that appellant was injured by falling on the sidewalk, two police officers were detailed about 6 o'clock in the evening of the same day to investigate the matter. They called on appellant, who stated he had fallen in a coalhole at 900 N. Broadway. The two officers went to that location and found the three coalholes which have been described. Appellant had not stated into which one he had fallen. The two officers inspected and tested all the coalholes, and, while so engaged, the regular officer on that beat joined them. The three officers testified that the lids were all in place and secure; that they stepped upon them and tested them at the center and on each side, walked, stood, and jumped upon them, and that the lids did not tilt, slip, or move. The two police officers who had regularly 'walked the beat,' which included this sidewalk, for more than five months immediately prior to May 2, passing over this sidewalk 'probably four or five times a day,' testified they were familiar with the location of these coalholes, and had never observed any defects.
Three of appellant's assignments of error relate respectively to the giving of respondents' instructions numbered 1, 5, and 7, as follows:
(1) 'The Court instructs the jury that the fact that plaintiff was injured is, in itself, no evidence of any negligence on the part of the defendant, but, on the contrary, the plaintiff must, by his evidence, and all the facts and circumstances introduced in evidence, show that the defendants were guilty of negligence, as defined in these instructions.'
(5) 'The Court instructs the jury that, even though you find and believe from the evidence that the coal hole and sidewalk described in the evidence were in a defective condition on May 2, 1927, and that by reason thereof such coal hole and sidewalk were not reasonably safe for travel, and even though you find and believe that plaintiff was caused to fall thereby and sustain injuries, yet, if you further find and believe that the defendant City of St. Louis, its agents and employees, neither knew, nor by the exercise of ordinary care could have known, of such a condition a sufficient length of time prior to such fall and injury, if any, to have, by the exercise of ordinary care, remedied the same and to have rendered such coal hole and sidewalk reasonably safe for travel, your verdict must be for the defendant The City of St. Louis, even though you find and believe that said coal hole was maintained and used by the defendants Oscar Vieths, Gerard B. Allen and George Neuhoff, trustees under the will of G. B. Allen, for their convenience or benefit, and that the defective condition thereof (if you find and believe that it was defective) was due to the negligence of the said defendants Oscar Vieths, Gerard B. Allen and George Neuhoff, trustees.'
(7) 'The Court instructs you that, in determining whether or not the defendants in this case, on the occasion when plaintiff is alleged to have been injured, were guilty of negligence, as defined in these instructions, you are not at liberty to resort to guess, speculation or conjecture, but must be governed by the evidence and the instructions of the Court and if, under such evidence and instructions, you are unable to determine with reasonable certainty whether or not the defendants on said occasion were guilty of negligence, then the plaintiff cannot recover and your verdict must be in favor of the defendants.'
Assailing respondents' instruction 1, appellant criticizes the statement therein that 'plaintiff must by his evidence and all the facts and circumstances introduced in evidence show that the defendants were guilty of negligence as defined in these instructions.' In support of this criticism appellant cites Schertz v. John Hancock Mut. Life Insurance Co. (Mo. App.) 251 S.W. 93, 94, and Bradley v. Becker, 296 Mo. 548, 246 S.W. 561, 565. The direction given in the instructions condemned in the cases cited is very different from that in the instruction under review. The Schertz Case was an action on a life insurance policy. Upon defendant's request, this instruction was given: 'That the proofs of death furnished by the plaintiff to the defendant are an admission on the part of the plaintiff that the deceased * * * on and prior to the date of the issuance of the policy * *...
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