Keen v. City of St. Louis
| Decision Date | 19 June 1945 |
| Docket Number | 26843 |
| Citation | 189 S.W.2d 139 |
| Parties | KEEN v. CITY OF ST. LOUIS |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
M. A Shenker and Casper S. Yost, both of St. Louis, for appellant.
Joseph F. Holland, City Counselor, and Wm. Robert Davis, Asst. City Counselor, both of St. Louis, for respondent.
McCULLEN
This action was brought by appellant as plaintiff against respondent as defendant to recover damages for personal injuries which plaintiff sustained on November 7, 1942, when she fell while walking along a walk in the Soulard Market, a municipal market owned and operated by defendant. A trial before the court and a jury resulted in a verdict and judgment for defendant. After an unavailing motion for a new trial plaintiff appealed. The appeal was originally taken to the Supreme Court, but that court, finding it was without jurisdiction of the cause, transferred it to this court. See Keen v. City of St. Louis, Mo.Sup., 185 S.W.2d 23.
The petition of plaintiff alleged that defendant was and is a municipal corporation organized under the laws of the State of Missouri and had a population of more than 150,000 inhabitants; that it owned, maintained and operated a municipal market known as the Soulard Market in the City of St. Louis, Missouri, for profit; that said market was bounded by Seventh and Ninth Streets, and Carroll Street and Lafayette Avenue; that in said market defendant rented separate stands and places of business to retail dealers in fruits, vegetables, produce and other food products for profit; that there were walks or aisles in front of and between said stands which were at all times controlled and maintained by defendant through its market master in charge of said market; that on November 17, 1942 while plaintiff was at said market as a customer and while she was walking in a westwardly direction on and along an aisle maintained by defendant in said market, and at a place used by customers, she was caused to slip and be thrown violently down upon said walk or aisle as a direct result of the carelessness and negligence of defendant, and as the direct result thereof was seriously and permanently injured.
The negligence charged in the petition is that defendant failed to exercise ordinary care to maintain the walk in Soulard Market where plaintiff fell in a reasonably safe condition for the use of persons, including plaintiff, in that defendant allowed dirt, fruit and vegetable refuse to be and remain upon the surface of said walk or aisle which rendered the surface thereof slick and slippery, and that defendant knew, or by the exercise of ordinary care could have known, of said condition in said aisle at said place in time thereafter to have removed said dirt, fruit and vegetable refuse and avoided plaintiff's injury, but negligently failed to do so.
Defendant's answer admitted that it is and was a municipal corporation and denied each and every other allegation in plaintiff's petition. Defendant's answer then alleged that plaintiff was guilty of contributory negligence in failing to use her eyesight and other senses to discover and avoid the dirt, fruit and vegetable refuse and to guard her footsteps and pay attention to the manner and direction in which she was walking. The answer of defendant also pleaded that plaintiff had failed to give notice in writing to the Mayor of the City of St. Louis within ninety days of the occurrence for which plaintiff claimed damage, as required by the provisions of Section 7636, R.S.Mo.1939, Mo.R.S.A.
At the beginning of the trial defendant, through its counsel, admitted that Soulard Market belongs to the City of St. Louis; that it is a public market and that the walk in question where plaintiff fell runs through the market; that it is and was a public sidewalk, and was used twenty-four hours a day; that the stalls in the market are owned by outsiders and that anyone who wants to rent one of those stalls and have a market may do so, but that the city does not operate the stalls themselves; that the city is merely a landlord and operates Soulard Market as a public market for the convenience of the public.
The evidence shows that Carroll Street runs east and west, and Seventh, Eighth and Ninth Streets run north and south; that the walk on which plaintiff fell runs from Seventh Street westwardly to Ninth Street on the south side of Carroll Street. It is located in the market near the Carroll Street side. It is a concrete walk about fifteen feet wide. At Eighth Street the market building projects out across the walk in question and at this point the main part of the building occupies what would otherwise be Eighth Street -- Eighth Street having been vacated for that purpose. At this point there are doors leading through the market building for persons going from the east part of the market to the west part thereof. The evidence shows that these doors are open from about six o'clock in the morning until about ten o'clock at night. There is a sidewalk or walk which goes around this part of the building so that pedestrians may continue west on the walk in question if they wish to do so or if the building should be closed. Along both sides of the walk are concrete strips about eight inches above the walk and about four feet wide on which there are stalls or stands which are numbered. These stalls or stands are rented to separate dealers who use them for the display and sale of their products. People walk along the walk in question and make their purchases of food from the stands on each side of the walk. People also use the walk for the purpose of going through the market place from east to west and from west to east. The walk in question and the stands of the dealers are covered with a permanent roof or canopy, but the sides of the market place at the point where the walk in question is located are not enclosed.
Plaintiff testified that she and her daughter started at the east end of the market and were going through the market toward the west part thereof buying vegetables and just looking from side to side; that they were walking on the walk and when they reached a certain part of the market plaintiff slipped and fell; that it was an orange peel that caused her to fall; that her foot slipped and she fell; that she had not noticed whether there was anything on the concrete walk but after she fell and while she was lying there she saw lettuce, cabbage and beets on it; that the lettuce looked decayed and like it had been trampled on; that a two-foot space was covered with debris, but the rest of the walk was clear; that there was a mark on the floor going kind of south; that 'the mark was a very little one, just something had scooted and it went to the orange peel'; that the orange peel was nearly half an orange peel; that she did not see her foot strike anything but that it was an orange peel she fell on; that she did not see it before she fell; that it was her right foot which struck the orange peel; that someone picked her up and rested her against an orange crate and from there they put her into an ambulance and took her to a hospital; that it was her first trip through the market that day; that the walk in question is a large walk devoted principally to people that are patrons; people walk up and down there marketing, like they do in any market, and it is open to anyone that wants to go there and walk through there for any purpose.
Mrs. Eva Eaton, plaintiff's daughter, testified that she and her mother were walking west in the middle of the walk in question and that the first she knew her mother had fallen; that she then looked down and saw vegetable refuse and an orange peel on the walk; that they covered a space of about three or four square feet; that they had been trampled on but were already dried from being mashed down; she could see that they had been trampled on; that the leaves were dry; that there was not any juice of the vegetable leaves remaining on the concrete surface of the walk when she saw it except the orange peel; that she did not know what caused her mother to fall except that her mother told her it was the orange peel; that the walk is a public walk and used by hundreds of people every market day.
Edward R. Stettini, market master of the Soulard Market, testified on behalf of defendant that he went to the place in the market where plaintiff fell, arriving there fifteen or twenty minutes after she fell; that he came from the west end of the market; that the city owns and operates the building and streets inside the market; that besides himself he has four men and a woman working there and their duty is to walk the aisles and keep the walks clean from anything that may be injurious to the patrons of the market; that the walk was dry and there was no debris or vegetation on the walk that he could see; that he had two men on duty at that time, one man would have two blocks and the other man two blocks; that since the men had gone through there last it would be fifteen or twenty minutes; that if they actually patrolled they would be working on the district of six blocks for half an hour before plaintiff fell; that plaintiff fell opposite stand No. 26.
Defendant introduced as witnesses William Karius, owner of a stand in the Soulard Market, and Charles...
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