Lattimore v. Union Electric Light & Power Co.

• Decision Date: 19 November 1907
• Citation: 128 Mo. App. 37,106 S.W. 543
• Court: Missouri Court of Appeals
• Parties: LATTIMORE v. UNION ELECTRIC LIGHT & POWER CO.

106 S.W. 543

128 Mo. A. 37

LATTIMORE v. UNION ELECTRIC LIGHT & POWER CO.

St. Louis Court of Appeals. Missouri.

November 19, 1907.

Rehearing Denied January 7, 1908.

1. MUNICIPAL CORPORATIONS — INJURIES TO PEDESTRIAN — SIDEWALKS — OBSTRUCTION — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

Where a pedestrian tripped and fell over a hose attached to a water plug and extending from four to eight inches across a sidewalk into an adjoining excavation, and was injured, the questions of defendant's negligence in maintaining the hose in such condition and of plaintiff's negligence in failing to observe it in time to prevent the injury held, under the evidence, for the jury.

2. SAME — CONTRIBUTORY NEGLIGENCE — EVIDENCE.

Evidence that a hose over which plaintiff fell and was injured, alleged to have been negligently maintained across a sidewalk, was covered with dust so as to make its color like that of the pavement, was admissible on the issue of plaintiff's contributory negligence, though the petitioner did not allege such fact, as bearing on the question of defendant's negligence in maintaining the hose in such condition.

3. SAME.

Where plaintiff fell over a hose alleged to have been negligently maintained across a sidewalk as plaintiff was walking along the walk, the fact that plaintiff's attention was diverted from his footsteps to the foundation of defendant's building, and for this reason did not observe the hose, did not establish that plaintiff was negligent as a matter of law.

4. SAME — CARE REQUIRED.

A pedestrian is only required to use ordinary care in proceeding along a sidewalk to discover impediments, pitfalls, or other dangers.

5. NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — BURDEN OF PROOF.

An instruction requiring plaintiff to establish by a preponderance of the evidence that he was not negligent was erroneous and properly refused; contributory negligence being a matter of defense to be pleaded and proved by the defendant.

6. TRIAL — INSTRUCTIONS — REQUEST TO CHARGE.

A requested charge, in an action for injuries sustained by a fall over an obstruction on a sidewalk, that plaintiff is required to exercise ordinary care for his own safety, was covered by an instruction given that, if plaintiff's injury was wholly or in part caused by his negligence "in failing to watch or observe his footsteps," the verdict must be for defendant.

7. SAME.

The jury having been charged that, if plaintiff's injuries were wholly or partially caused by his failure to watch and observe his footsteps he could not recover, the court did not err in refusing to charge that, in order to watch or observe his footsteps, he was bound to use his "God-given senses."

8. TRIAL — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

Where a city ordinance was offered in evidence and excluded, the court properly refused a request to charge based thereon.

9. MUNICIPAL CORPORATIONS — INJURIES TO PEDESTRIAN — OBSTRUCTION OF STREET — INSTRUCTIONS.

Where a pedestrian alleged that he was injured by falling over a hose negligently stretched across a sidewalk at a height "of about eight inches from the surface," he was only required to prove that the hose was maintained far enough above the walk to make it a dangerous obstacle and one likely to trip foot travelers, so that an instruction requiring a verdict for defendant if the hose was not maintained at a height above the sidewalk of about eight inches, and in other respects did not conform exactly to the allegations of the petition, was properly refused.

10. SAME — INJURY TO PEDESTRIAN — OBSTRUCTION OF STREET — EVIDENCE.

In an action for injuries to a pedestrian by falling over a hose alleged to have been negligently maintained across a sidewalk from a water tap at a height of about eight inches, a city ordinance permitting defendant to put in the water tap to get water to use on the foundation of an adjoining building was irrelevant; the issue being not as to defendant's right to connect a hose with the tap, but to maintain the hose across the sidewalk in a dangerous and negligent manner.

11. SAME — NEGLIGENCE.

City ordinances permitting defendant to take water from a tap to use in the work on the foundation of an adjoining building did not authorize defendant to connect a hose to the tap and maintain the same taut at a dangerous height across the sidewalk.

12. DAMAGES — PERSONAL INJURIES — EXCESSIVENESS.

Plaintiff fell over a hose negligently maintained by defendants across a sidewalk and was injured. The ligaments of his left knee were injured, and the swelling extending over the lower third of the thigh. The limb was put in a plaster cast, which was changed from time to time for a period of three months. Plaintiff was able to go about on crutches, which he used for three months, and was then able to walk with a cane, which he used for another three months. Physicians testified that the membranes about the knee joint were ruptured, permitting the escape of the lubricating fluid, which rendered it painful for plaintiff to walk. There was more or less stiffness in the limb, and a year after the accident plaintiff still suffered pain and inconvenience therefrom; there also being some evidence that the injury was permanent. Beside the injury to the knee the sheathing inclosing the ligaments of the leg was ruptured. Plaintiff's financial loss was $150 a month for several months, and his bill for medical attendance was $200. Held, that a verdict for $2,800 was not excessive.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by Clarence Lattimore against the Union Electric Light & Power Company. From the judgment for plaintiff, defendant appeals. Affirmed.

Jno. H. Drabelle, for appellant. Paul V. Janis and Truman P. Young, for respondent.

GOODE, J.

Plaintiff, having been injured by a fall, instituted this action to recover damages from defendant, alleging that the accident was due to its negligence. The defendant company was putting in a foundation for a building on the west side of Fourth street, in the city of St. Louis, near Lucas avenue. This work was being carried on under a permit from the city authorities, regulating in some particulars the manner of doing it, and the use by defendant during its progress of the adjacent sidewalk. A water tap or plug had been sunk at the outer edge of the sidewalk near the curb, in order that a hose might be attached and water obtained to use in laying the foundation. We shall state the facts according to the testimony for plaintiff, inasmuch as it is contended the court erred in not directing a verdict for defendant on all the evidence. The water tap projected above the sidewalk, according to the version of the plaintiff, from 4 to 8 inches. A hose of common size had been attached to it by the defendant's workmen, and carried across the sidewalk, which was 15 feet wide, into the excavation for the foundation. By this means water was obtained to use in mixing the concrete that went into the foundation. The hose had remained stretched across the sidewalk for from one to three weeks prior to the accident. The testimony is not positive as to the length of time, but it was within the period stated. As plaintiff was walking northward on Fourth street about 3 o'clock in the afternoon, he tripped on the hose and fell to the sidewalk, where he lay stunned for an interval, but was helped up and proceeded to his place of business. The evidence regarding the seriousness of his injuries will be adverted to in connection with the exception to the verdict on the ground that the damages awarded were excessive.

Defendant insists that the evidence had no tendency to establish negligence on its part, as nothing was proved, except that it had simply attached a hose of common size to an ordinary water tap, and had carried the hose, lying on the sidewalk, into the excavation for the foundation, to get water. If this were all the evidence tended to prove, we would accede to the proposition that a verdict for defendant should have been ordered. But plaintiff's account of the accident puts the question in a different light; nor was he entirely uncorroborated by other witnesses. The substance of his statement is that, after he regained consciousness and arose to his feet, he examined the position of the hose closely, because he wanted to learn how he happened to fall. He swore the hose, where it was attached to the water plug, arose from 4 to 8 inches above the sidewalk, and was stretched across the sidewalk into the cellar of defendant's building at practically that elevation; in other words, that the hose was drawn taut, or nearly so, and stood from 4 to 8 inches above the walk. The testimony tends to show that, though the hose was originally black, it was covered with lime dust, as was the sidewalk, so that the color of the two was nearly the same. Such an obstruction to the safe use of...