Kelsey v. Israel

• Decision Date: 08 November 1927
• Docket Number: No. 19949.,19949.
• Citation: 298 S.W. 1065
• Parties: KELSEY v. ISRAEL.
• Court: Missouri Court of Appeals

298 S.W. 1065

KELSEY v. ISRAEL.

No. 19949.

St. Louis Court of Appeals, Missouri.

November 8, 1927.

Rehearing Denied November 22, 1927.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

"Not to be officially published."

Action by Cyrene Kelsey against Clyde S. Israel. From a judgment for plaintiff, defendant appeals. Affirmed.

A. E. L. Gardner, of Clayton, and Merritt U. Hayden, of Detroit, Mich., for appellant.

Cobbs, Logan & Alexander, of St. Louis, and E. McD. Stevens, of Clayton, for respondent.

DAUES, P. J.

This is an action for damages for personal injuries in which plaintiff recovered a verdict and judgment for $3,500, from which defendant has appealed.

Plaintiff's petition charges that while in the exercise of due care and caution for her own safety she received injuries due to the negligence of the defendant and his employees in the following particulars: That the defendant, as a contractor, was engaged in constructing a certain public street in University City, St. Louis county, in a subdivision known as Alta Dena; that defendant's agents and servants in the construction of said street, and while in the performance of their duties for defendant, negligently caused a steel bar mesh to be thrown near the sidewalk then paralleling said street, so that same projected into the sidewalk in such a position as to be likely to cause persons using said sidewalk to trip and fall over same; that defendant, his agents, and servants knew, or by the exercise of ordinary care could have known, that said steel rod at such time and place would constitute a menace and danger to persons lawfully in use of the sidewalk; that said defendant negligently failed to remove said rod constituting said obstruction, or to post any notice or warning as to its presence, and the plaintiff while lawfully in use of said sidewalk, and while in the exercise of due care and caution for her safety, was caused to trip and fall over said rod and was thrown violently against the pavement, etc.

The answer is a general denial, with a plea of contributory negligence. The reply is a general denial.

The points made here on appeal are, first, that the petition does not state a cause of action; second, that there is not sufficient evidence to prove the essential allegations of plaintiff's petition without drawing inference upon inference; and, third, that plaintiff was shown to be guilty of contributory negligence, as a matter of law.

Under the first point, that the petition does not state facts sufficient to constitute a cause of action, appellant cites the cases of Sabol v. St. Louis Cooperage Co., 313 Mo. 527, 282 S. W. 425; Zasemowich v. Manufacturing Co. (Mo. Sup.) 213 S. W. 799; Kramer a. Power & Light Co., 311 Mo. 369, 279 S. W. 43, and our recent case of Hopkins v. American Car & Foundry Co., 295 S. W. 841. The Hopkins Case, supra, is now in the Supreme Court on certiorari and as yet cannot be considered an authority. However, none of these cases are deemed by us as authority for holding the instant petition fatally defective. We have set out rather fully the allegations of the petition, and we cannot agree that same states mere conclusions, but we think same states facts and circumstances constituting negligence of the defendant. It is true that if the petition were wholly defective, the point could be considered now after verdict, but when the petition does not wholly fail to state a cause of action, imperfections are deemed cured after verdict. We think this petition certainly is good after verdict. The facts and circumstances averred in the petition, viewed with the benefit of the matters that are necessarily implied, state a cause of action. It is undoubtedly good after verdict.

The next question is whether the jury were justified in drawing inferences of the defendant's negligence from the facts and circumstances depicted in the evidence, and whether this can be done without drawing inference upon inference. The effect of the whole evidence may be stated briefly, since it is very short and all the evidence being adduced by the plaintiff, defendant having offered no proof.

Plaintiff herself testified that she lived on Westmoreland drive, in the city of Clayton, St. Louis county, Mo., and that she had lived there for about 20 years; that on the afternoon of the day of the accident she was walking west on the sidewalk on the north side of University drive; that she was looking forward and did not see any obstruction on the sidewalk, when she was suddenly tripped and caused to fall violently on the sidewalk, having caught her foot in a piece of mesh made of metal bars. She then described her injury and the extent of same. No attack is made on the size of the verdict. She said that at this time she was walking on the sidewalk in order to inquire about one Jack Israel, who, as we understand it, was connected with defendant's business enterprise; that defendant was then, and for quite a period before had been, engaged in building concrete streets and gutters in the neighborhood at this point. The sidewalk was 4 or 5 feet wide and had been completed for about 6 months. The curb and gutter had been completed, but the street, she says, was still in course of construction. To the...