Johnston v. City of St. Louis

• Decision Date: 02 April 1940
• Docket Number: No. 25235.,25235.
• Citation: 138 S.W.2d 666
• Parties: JOHNSTON v. CITY OF ST. LOUIS.
• Court: Missouri Court of Appeals

138 S.W.2d 666

JOHNSTON v. CITY OF ST. LOUIS.

No. 25235.

St. Louis Court of Appeals. Missouri.

April 2, 1940.

Rehearing Denied April 16, 1940.

Appeal from St. Louis Circuit Court; Frank B. Coleman, Judge.

"Not to be reported in State Reports."

Action by John Johnston against the City of St. Louis for personal injuries From a judgment for plaintiff, defendant appeals.

Judgment reversed and cause remanded with directions to enter a new judgment on condition that plaintiff file a remittitur, and otherwise judgment reversed and cause remanded for a new trial.

Edgar H. Wayman, City Counselor, and David A. McMullan, Associate City Counselor, both of St. Louis, for appellant.

Leo F. Laughren, of St. Louis, for respondent.

BECKER, Judge.

This is an appeal by the city of St. Louis, defendant below, from a judgment against it in an action by John Johnston for personal injuries alleged to have been sustained by him as the result of a fall upon a public sidwalk in said city.

The petition alleged in substance that in front of the premises numbered 410 North Ninth street, the sidewalk was "cracked, depressed, separated and broken," which rendered it dangerous, and that it was located in the congested downtown section; that plaintiff, on December 19, 1936, was a pedestrian upon said sidewalk, and that as he came in contact with the dangerous condition, he was caused "to trip, slip, stumble and fall," resulting in injuries to him, due to the negligence of the defendant in failing to exercise ordinary care to maintain said sidewalk in a reasonably safe condition.

The answer consisted of a general denial and a plea of contributory negligence, in that the plaintiff failed to exercise ordinary care for his own saftey when, by using his eyesight and other senses, he could have observed the broken condition of the sidewalk and could have thus avoided the dangerous condition and avoided the injuries complained of. The answer further alleged that the plaintiff failed to give the required statutory notice.

The reply was a general denial of the allegations in the answer.

Plaintiff John Johnston, who at the time of the trial was a married man fifty-five years old, testified that on the afternoon of December 9, 1936, about three-thirty o'clock, he left his place of employment in the Old Federal Building between Ninth and Eighth and Olive and Locust streets in the city of St. Louis, where he was working for the federal government, intending to go to Barney's Army Store at 10th and Washington; that he walked north on Ninth street a little to the west side of the center of the sidewalk, and as he neared the mouth of an alley in the center of the block he stepped out toward the curb to pass two women whom he knew, Loretta Todd and Grace Phaender, who worked in the Old Federal Building; that as he stepped out to pass them a lady came toward him, walking south, and he stepped a little farther toward the curb when he felt his ankle turn, which caused him to fall striking his hip. He stated that he had not known that there was any crack or depression in the sidewalk prior to the time that he fell, and that just before he fell he was looking straight ahead; that after he had fallen and was lying in the alley he looked back and saw a hole in the sidewalk near the curb and near the alley. Plaintiff described the hole as "an irregular formation and it is about twenty-six or twenty-seven inches on the line of the alley, and about eighteen or twenty-four inches along the side of the curb, and it dips from about an inch down to three inches in the center; a very irregular formation. The concrete is broken in part of the hole; it is depressed."

Plaintiff identified plaintiff's Exhibit B, which was introduced in evidence, as a photograph of "the hole I put my foot in, in the alley," and as a "correct representation of the condition of the sidewalk." He testified that Exhibit B was "a picture of the hole I stepped in. * * * The depth of that depression or hole is from one to three inches."

"Q. Now, what part of the hole, if you know, did you place your foot in? A. Right in here (indicating), where this concrete is sunk.

Q. Is that in the part that is two and one-half inches deep? A. Yes, sir.

"Q. In the deeper part? A. Yes, sir."

Plaintiff further testified that after he fell Grace Phaender and Loretta Todd, the two girls whom he knew and who worked at the Old Federal Building, were there and police officers came and some people moevd him over near the old Orpheum Theater, which is located immediately north and adjacent to the alley. He was taken to the City Hospital where X-rays were taken and where he was confined to bed from December 19, 1936, until the 23rd of February, 1937. He was put in what is known as a Hodgen splint, and during all the time that he was in the hospital he suffered intense pain. He used two crutches up until about the middle of August, and then used a crutch and a cane until the following November, and since that time he has been using a cane to assist him in walking. He testified that he had been an active man before his injury, but that since his injury he has not regained his strength.

On cross-examination he testified that the sidewalk was eleven to twelve feet wide, and that as he and the lady walking south approached one another he started to walk farther to his left to let her by, and she was about two and one-half feet from the curb, and that he was walking out farther toward the curb; "we just about met right at the hole where I stepped in." He stated that the alley and sidewalks were dry, with the exception of a small stream of water coming down the middle of the alley. He stated that he saw the alley as he approached it, but did not notice at the time how it was paved. He stated he was looking straight ahead and was not looking to see whether or not there was any curb there or how it was connected up. He further stated, on cross-examination, that he did not know what his ankle struck when it twisted; that his ankle seemed to give away, and that he did not "know positive" that his ankle went into that hole at its deepest point; that all he knew was that his ankle turned and that he fell in the alley. Plaintiff was asked:

"Q. And, as to whether or not that cracked place caused you to fall or not, you cannot swear to that, can you? A. I know I was tripped.

"Q. Tripped? A. Yes, sir.

"Q. I thought you said your ankle turned? A. Well, tripped or turned.

"Q. There's a difference, isn't there? A. Yes, sir.

"Q. What did you do? A. My ankle turned."

And plaintiff further stated that he could not "actually swear" whether or not the crack or broken place in the sidewalk is what caused him to fall.

The deposition of Grace Phaender was introduced in evidence by plaintiff, and she therein testified that she knew plaintiff; that while walking north on Ninth street with Loretta Todd, she saw the accident. According to her testimony there was no ice on the sidewalk and it was dry. She and Loretta Todd were walking at an ordinary gait, and plaintiff passed them on the street side; she recognized him as he passed, and she glanced over at him and happened to look down just as he "stepped in this hole." She testified that she saw him step in a hole in the sidewalk, which hole was just at the curb where the alley and sidewalk met; that the place was broken and depressed, and that, as he stepped, his ankle twisted and he fell forward to his right. She remained with plaintiff until he was taken away in an ambulance.

Edward Cavanaugh testified on behalf of plaintiff that he knew plaintiff, and that in December, 1936, he was employed at James Short's, 410 North Ninth street, as a bartender, and that he had occasion to cross from the east to the west side of Ninth street four or five times a week; that the sidewalk at the corner of the alley just where the alley joins Locust street going north was broken. He testified that to his knowledge the hole or depression in question was in the sidewalk two and one-half years prior to December, 1936.

The defendant offered an instruction in the nature of a demurrer to the evidence at the close of plaintiff's case and again at the close of the whole case, each of which was refused.

As to the instructions upon which the case was submitted to the jury, such as are pertinent to a discussion of the assignments of error raised here by appellant will appear later on in this opinion.

Verdict resulted in favor of plaintiff and against defendant in the sum of $6,000, and after the overruling of a timely motion for new trial defendant appealed.

In the course of the trial plaintiff, over the objection of defendant, was permitted to introduce in evidence the pleadings in the case. The action of the court in this regard is here assigned as error prejudicial to the defendant.

The record discloses that the petition was neither read nor exhibited to the jury, and that though the answer was not exhibited to the jury, counsel for plaintiff, in his argument to the jury, read that portion thereof which set up the charge of contributory negligence as a defense, and also the allegation in the answer that plaintiff had failed to give timely notice of his injury in writing to the Mayor of the City of St. Louis, as required by sec. 7493, Rev.St.Mo. 1929, Mo.St.Ann. 7493, p. 5960.

Pleadings are intended for the court and not for the jury and ordinarily should not be permitted to be introduced in evidence or read to the jury. Plaintiff here was permitted to introduce the petition in the case "for the purpose of showing the date on which the petition was filed in court, and the date upon which service was had upon defendant," but this was error for, as pointed out by counsel for defendant, each of the dates in question was beyond ninety days from the date of the alleged accident, the time within which notice of the alleged accident had to be given to the city by plaintiff under section 7493, supr...