Kiefer v. City of St. Joseph

• Decision Date: 16 June 1922
• Docket Number: No. 23074.,23074.
• Citation: 243 S.W. 104
• Parties: KIEFER v. CITY OF ST. JOSEPH.
• Court: Missouri Supreme Court

243 S.W. 104

KIEFER v. CITY OF ST. JOSEPH.

No. 23074.

Supreme Court of Missouri, Division No. 1.

June 16, 1922.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge,

Action by George Kiefer against the City of St. Joseph. From a judgment for plaintiff, defendant appeals. Affirmed, on condition of remittitur.

See, also, 229 S. W. 1089.

Lindsay & Kavanaugh, for appellant.

Duvall & Boyd, of St. Joseph, for respondent.

SMALL, C. I.

Appeal from the circuit court of Buchanan county. Suit was originally against the city of St. Joseph, Effie L Spratt, and Mr. and Mrs. Fred E. Lawrence, as defendants, for personal, injuries sustained by plaintiff in falling upon a sidewalk covered with rough ice in the city of St. Joseph, on the 2d day of February, 1018. The accident happened in front of 1918 Dewey avenue, and the ice was alleged in the petition to have been caused by snow which had fallen a long time and many days before said February 2d, and by and from water which the defendants, Effie L. Spratt, the owner, and Fred E. Lawrence and Mrs. Fred. B. Lawrence, the tenants of said property, 1918 Dewey avenue, carelessly permitted to escape from said lot and premises and to flow down a high bank or terrace onto said sidewalk, and become mixed with snow and ice and earth thereon, which mixture formed. into ice ridges, etc., upon said sidewalk, and created a dangerous obstruction thereon, and which existed many days before said 2d of February, which all of the defendants knew, or by the exercise of ordinary care could have known, `long before said date, and by the exercise of reasonable care could have removed and remedied such unsafe condition prior to plaintiff's injury, but negligently failed to do so.

All the defendants answered, and, among other things, pleaded contributory negligence, which plaintiff denied. The case has been tried twice. At the first trial the court sustained a demurrer to the evidence as to ail the individual defendants and thereupon plaintiff took a nonsuit as to such defendants. Defendant city saved no exceptions to the sustaining of said demurrer or granting of said nonsuit. The cause was then submitted to the jury, which found a verdict for the defendant city. Plaintiff thereupon filed a motion for new trial, which the court granted on the ground that the verdict was against the weight of the evidence. Thereupon the city appealed to this court from the order granting such new trial. In this court the city assigned as error and for a reversal of said order that on the record the plaintiff as a matter of law was guilty of contributory negligence, and, furthermore, that it was impossible for the jury to distinguish the injuries plaintiff claimed he received in the fail on the sidewalk in February, 1918, from prior injuries which he admitted he had received in falling from a scaffold in 1911 while working at his trade as a carpenter. Our opinion on the former appeal is found in 220 S. W. 1089. This court decided both contentions against the city, holding that the evidence of plaintiff's contributory negligence was for the jury, and that the injuries he sustained from falling on the sidewalk were susceptible of as, certainment by the jury. The evidence on the trial from which this appeal was taken was substantially the same as it was before. Before the trial took place the second time the defendant city moved the court to require the plaintiff to bring in the landlord and, tenants of the adjacent property, formerly parties to the suit, but as to whom the court had previously sustained a demurrer to the evidence, and the plaintiff had taken a nonsuit. This motion the court overruled. Thereupon the trial proceeded against the city alone and there was a verdict for $15,000 against it, from which it duly appealed to this court. As shown by our former opinion, the plaintiff's evidence tended to show the negligence of the city as alleged in his petition (which was not seriously controverted), and the evidence of his contributory negligence was for the jury. The evidence on these questions was substantially the same on the second trial as It was upon the first. On this appeal the city makes four assignments of error: First, that under the physical facts the plaintiff could not have fallen and been injured as claimed by him, and there was no evidence from which the jury could determine the extent of such injuries. Second, that instructions Nos. 2, 5, and 6, given for plaintiff, were erroneous. Third, that the verdict is against the weight of the evidence, and is based on bias and prejudice, and Is excessive in amount. Fourth, that the court erred in overruling the city's motion to require the other individual defendants again to be made parties to the suit. The instructions so far as necessary to pass upon the errors assigned as to them will be set out later on in our opinion.

The evidence as to plaintiff's injuries sustained by the fail on the sidewalk and from the fall from the scaffold in 1911 was very conflicting. Plaintiff's evidence showed that in 1911 plaintiff was about 30 years old, and while working at his trade as carpenter fell on his back from a scaffold 2½ to 3½ feet high to the floor below, with timbers weighing 250 to 300 pounds falling across his abdomen, and was seriously injured. He admits he was in the hospital for such injury some 10 weeks, walked on crutches for 4 or 5 months alter he got out, was unable to work for one or two years thereafter, and that he thereby lost control of his urine, was hurt in shoulders and back, spit up blood, and was hurt internally. But plaintiff testified that he did not lose control of his bowels by said injury, and was not injured on the buttocks. He received $2,500 in settlement of said injury. He testified that he completely recovered therefrom, and had worked at his trade doing all kinds of heavy and light carpenter work and other work from 1012 until several months before he fell on the sidewalk, when he was working in a mill in St. Joseph as a common laborer.

As to the accident and Injury sued for, he testified in substance as follows: He was going to his work at the mill early in the morning of February 2, 1918, before it was quite light, and, while walking along Dewey avenue up a 10 per cent. to 15 per cent. grade on the sidewalk in front of premises No. 1918, he slipped on an irregular ridge or peak of ice with which the sidewalk was covered, both feet flew cut in front from under him, and he fell to the sidewalk and struck on his buttocks. His feet were in front of him when he was sitting down; he struck with his whole weight, he slipped and lit that quick; his right foot slipped, and both feet flew out from under him. He weighed 170 to 180 pounds. He had on rubber overshoes, with creased soles. His breath was knocked out of him; he could not breathe, he tried to holler and could not; no one was around. The back part of his legs kind of tingled, and were numb, and he had pain in the small of his back, shoulders,,and head. He arose, and walked about a block and a half to his place of work, but was unable to work any that clay, and went home, with the assistance of his daughter, on the street car at about 6 o'clock. He suffered much pain on the trip. When he got home he removed his clothes; his son put some flannel cloths saturated with Sloan's Liniment on his hip and buttocks, but he could not feel it. He was numb from the small of his back down to his feet and on the back part of his buttocks and legs. He noticed the numbness immediately after he struck the ice. Dr. Edward A. Gummig was called the next morning, and was still treating plaintiff until the trial, June 21, 1921. Ever since his injuries plaintiff has suffered pain in his back, shoulders, and head, and has been numb in the back part of his buttocks and legs from the small of his back down and has had no control over the action of his bowels or bladder, and has been compelled to wear a urinal and diapers. There has been no improvement in his condition. He was confined to his bed for six weeks immediately after his injury. Then he got out on crutches. He used crutches for two years, when, on the advice of his physician, he had a spine brace in the form of a corset made, dispensed with his crutches, and used a cane to walk with. The brace is hot and uncomfortable, but holds his back in shape. When plaintiff was injured carpenters wages were 45 cents to 50 cents an hour, and at the time of the trial 87½ cents per hour. Never been able to do any manual labor since his injury. Has clerked in hotel for some months at $9 per week and board.

Dr. Edward A. Gumming testified for plaintiff: That early in February, 1918, he called to see plaintiff at his home; found two abrasions, one on each side of the buttocks, 3 or 4 inches in diameter; no other outward evidence of injury. From history given, diagnosed case as injury to back, and later confirmed that diagnosis by an X-ray taken by Dr. McGlothlan, which showed a compressed fracture of the first lumbar vertebra. The results which follow that injury are no control over the urine action or bowel movement. The nerve centers which control the bowel and urine movement are located along this first lumbar vertebra. He was satisfied that condition is permanent. That, assuming plaintiff fell on the sidewalk February 2, 1918, by slipping on the ice, both feet flying out from under him, and alighting on his buttocks, he weighing 170 to 180 pounds, with sufficient force to produce the contusion and abrasions he found on plaintiff's buttocks, he would say that a fall of that kind, alighting in that manner, would be sufficient to cause this fracture of the vertebra. That he still treats plaintiff, and that a man in his physical condition could not perform manual labor. If plaintiff had received the fracture of the vertebra he found in 1911 he could not have done manual labor in 1913 to 1917, or carpenter work. He was also of the...