Huffman v. City of Hannibal

• Decision Date: 02 November 1926
• Docket Number: Mo. 19154.
• Citation: 287 S.W. 848
• Parties: HUFFMAN v. CITY OF HANNIBAL
• Court: Missouri Court of Appeals

287 S.W. 848

HUFFMAN v. CITY OF HANNIBAL

Mo. 19154.

St. Louis Court of Appeals. Missouri.

November 2, 1926.

Appeal from Circuit Court, Rails County; Charles T. Hays, Judge.

"Not to be officially published."

Action by Jennie Huffman against the City of Hannibal. Judgment for plaintiff, and defendant appeals. Affirmed.

John G. Cable, of Hannibal, and Joseph F. Barry, of New London, for appellant.

E. W. Nelson and Harry Carstarphen, both of Hannibal, and E. L. Alford, of Perry, for respondent.

DAUES, P. J.

This is an action for damages for personal injuries sustained by plaintiff, a pedestrian, falling on the sidewalks of the city of Hannibal, Marion county, Mo. There was a verdict and judgment in favor of plaintiff for $2,000, from which defendant appeals.

The petition alleges, in part, that plaintiff on August 26, 1922, was walking upon a sidewalk on a public street in the city of Hannibal ; that the sidewalk was made of concrete and was built about the year 1901. At the point where plaintiff fell there was a gutter or water drain across the sidewalk leading out from the property. The gutter was simply a depression in the concrete about 2½ inches deep and 4 inches wide. The walk was 9 feet wide, and in the center running lengthwise was an expansion seam which crossed the water drain at right angles. It is alleged that on either side of the gutter and near the center of the sidewalk, or about the longitudinal seam, the concrete was chipped away and broken off, leaving a depression which created a dangerous and unsafe place as a footing for pedestrians, and that defendant knew, or by the exercise of ordinary care should have known, of this defective condition in the sidewalk; that the defect existed long prior to the date of the accident; and that plaintiff, while in the exercise of ordinary care, fell as a result of stepping into this aperture and was severely injured. The city filed an answer, which is a general denial and a plea of contributory negligence. Plaintiff's reply is a general denial.

Very little dispute arises on the facts. The condition of the sidewalk was shown to be as alleged in the petition. It is in evidence that the concrete along the expansion seam and about the middle of the walk had buckled and bursted so that the edge of the western half of the sidewalk was elevated about an inch above the surface of the eastern or outside portion of the sidewalk, and at about the center of the walk along the gutter there was a diamond-shaped hole broken through the sidewalk about 12 inches long and about 6 inches wide at the center. This hole was clearly shown to have been the result of the breaking of the surface of the concrete walk along the edge of the expansion seam and the edge of the water drain. The effect of this breaking of the sidewalk left a rough-edged hole in the middle of the walk about 1½ inches deeper than the drain gutter, with the edge of the protecting sidewalk raised above the surface of the walk. The sidewalk is on Main street, which is a much traveled street and a main thoroughfare in the city of Hannibal.

Plaintiff, a woman 44 years of age, living in Hannibal, was walking upon this sidewalk, which was the customary route of travel from her home to the main business section of the city. She was walking north on Main street, and the testimony is that she was walking in an ordinary gait, observing in a general way her progress forward. She was wearing ordinary shoes with low heels, and it was about 9 o'clock in the morning. There is evidence that the day was somewhat foggy. When plaintiff reached this defect in the sidewalk the heel of her left shoe went into the cavity, as a result of which she was violently thrown upon the concrete walk and severely injured, breaking her hip. Plaintiff testified, with seeming candor, concerning the circumstances of her fall and injuries. She said positively that she did not know of the existence of the hole in the walk; that she had passed over the sidewalk several times, but that this particular defect in the walk was unknown to her, and that while she was walking along in the ordinary manner, not indulging in any conversation with other persons or looking away from the course of her travel, the defect escaped her attention until she was tripped thereby. Certain pictures were introduced in evidence, which showed the condition of the sidewalk to be about as described in the oral testimony.

A witness, Mrs. Pearl Crouch, testified that she was a short distance from plaintiff when the accident happened. She said she saw plaintiff approach; that plaintiff was not talking to any one, but was by herself; and that plaintiff seemed to be looking straight ahead.

No question arises as to the length of time the defect existed nor the city's knowledge of it, nor as to the extent of plaintiff's injuries. The questions presented on this appeal run to the ruling of the lower court on the demurrer to the evidence and to the giving of instructions. The city attorney contends that the evidence showed that plaintiff was guilty of contributory negligence as a matter of law, and the court's failure to adopt that view is the ground of the first assignment of error.

We have in evidence such a condition of the sidewalk as would clearly make a case for the jury as to whether the sidewalk was in a defective and dangerous condition and left so with the constructive knowledge of defendant. Willis v. City of St. Joseph, 184 Mo. App. 428, 171 S. W. 27. Plaintiff's evidence is that she had walked over this side-walk before, but she states positively that she did not know of this defect until she was precipitated on the Walk by falling into the opening on this day. She and another witness stated that she was walking and looking ahead in the ordinary manner, and plaintiff said she did not discover in her observance that the hole was there until after she fell.

Can we say that this record convicts plaintiff of contributory negligence as a matter of law, in that she failed to see this defect in time to avoid the accident? Was this defect so obvious and of such proportion as to forcibly attract the attention of an ordinary person exercising...