Levine v. Jale Corp.

• Decision Date: 06 February 1967
• Docket Number: No. 24433,24433
• Citation: 413 S.W.2d 564
• Parties: Joseph LEVINE, Appellant, v. The JALE CORPORATION, Respondent.
• Court: Missouri Court of Appeals

Page 564

413 S.W.2d 564

Joseph LEVINE, Appellant, v. The JALE CORPORATION, Respondent.

No. 24433.

Kansas City Court of Appeals, Missouri.

Feb. 6, 1967.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 3, 1967.

Application to Transfer Denied May 8, 1967.

Rope, Shanberg, Rope & Gibson, Herbert M. Rope, Sherman L. Gibson, Kansas City, for appellant.

George T. O'Laughlin, Kuraner, Oberlander, Lamkin, Dingman & O'Laughlin, Kansas City, for respondent.

HOWARD, Presiding Judge.

This case comes to the writer on reassignment. It is a suit for damages for personal injuries received as a result of stepping into a hole or depression in the defective sidewalk in front of the apartment house at 708 West 48th Street, Kansas City, Missouri, owned by respondent, The Jale Corporation. The suit was originally brought against The Jale Corporation and against Irving C. Rubin and Anna Rubin, owners of the apartment house next door at 712 West 48 th Street. Although this case involves an allegedly defective sidewalk, the city of Kansas City, Missouri, is not a party. The Rubins were let out of the case by directed verdict at the close of plaintiff's evidence. Trial to a jury resulted in a verdict in favor of appellant in the amount of $3,500.00, but the trial court thereafter entered judgment in favor of respondent, The Jale Corporation, in accordance with its motion for directed verdict filed at the close of all the evidence. The trial court also sustained respondent's motion for new trial in the alternative. Plaintiff has appealed. We shall refer to appellant Levine as plaintiff and to respondent, The Jale Corporation, as defendant.

West 48th Street in Kansas City, Missouri, runs east and west. The two apartment houses mentioned herein are located on the north side of West 48th Street, facing south. Between these two apartment houses there is what is referred to, variously, as an alley or a driveway. It leads to a dead end at the back of the apartment house properties, and there is not room to turn around in the driveway. Vehicles using the driveway go in forward and back out. At its narrowest point, it is from 7 to 10 feet wide. People having business at the apartment houses use this driveway for their trucks and other vehicles. It is not a thoroughfare. The apartment house numbered 708, belonging to defendant, is east of this driveway and the apartment house numbered 712, belonging to the Rubins, is west of the driveway. The two apartment houses are separated only by this driveway. In front of these apartment houses is a curb and sidewalk which extends from the terraced front lawn of each apartment house to the steet. There is no parking. There is no sidewalk across the driveway. The sidewalk and curb come up to the drive and the curbing curves around the end of the sidewalk and extends into the terrace on each side of the driveway. The driveway is at street level, and is thus lower than the level of the sidewalk by the height of the curbing. In walking along this sidewalk, one must step down from the sidewalk and curbing on one side, walk across the driveway, and then step up onto the curb and sidewalk on the other side of the driveway.

The accident occurred sometime after 9 P.M. on April 9, 1964. Plaintiff had returned home about 9 P.M. and soon thereafter left his residence in an apartment in the building at 712 West 48th Street, to go to a restaurant in the next block east, to have supper. It was dark and he testified he could barely see the outline of the sidewalk and curb. Plaintiff walked eastward from his apartment house, along the sidewalk, stepped down to the level of the driveway, walked across the driveway, and in stepping up onto the curb on the east side of the driveway, he stepped into an indentation, or hole, or a worn place in the curbing or sidewalk, and turned his ankle and foot. He testified that it felt like he had sprained his ankle. He did not fall. Plaintiff limped on to the restaurant, had supper and returned home where his wife treated his injured foot and ankle and early next morning, he sought medical attention. It developed that he had a fracture of the fifth metatarsal bone of his right foot. In view of the issues presented, we need not go into detail concerning the medical evidence.

Plaintiff and his wife testified that the driveway had been structurally the same all during the fifteen years which they had lived at 712 West 48th Street. They did not know when the driveway was constructed or who constructed it or was responsible therefor. The sidewalk and curb in front of their apartment house, at 712 West 48th Street, had been repaired sometime around 1958 and was in good condition at the time of the accident. The sidewalk in front of the apartment owned by defendant, at 708 West 48th Street, was in bad shape. The curbing was worn and was crumbling away, and the sidewalk next to the curbing, along the curve at the driveway and along the curb line between the sidewalk and the street was broken and depressed up to 2 inches in some places.

Plaintiff's evidence showed that the driveway was used at times by automobiles, but primarily by garbage trucks, trash trucks, furniture vans, delivery trucks and trucks driven by repairmen, maintenance men, etc. The drivers of these vehicles had business with those who operated the apartment houses, such as those collecting garbage, trash, etc. and also with various tenants in the two apartment buildings, such as the drivers of furniture vans, delivering and taking away furniture when tenants moved, and the drivers of other trucks of various sizes, repairing appliances belonging to tenants and delivering merchandise ordered by tenants. Because of the narrowness of the driveway, these trucks, and especially the larger and heavier ones, often ran and drove their wheels over the curb and sidewalk on each side of the driveway in turning into and backing out of the drive. The plaintiff testified that he did not know what caused the defects, that he did not know that the trucks caused the depressions, holes and broken places in the curb and sidewalk, and that he did not know if these were caused by freezing. Plaintiff knew of, and had mentioned to others, the defective condition of the curb and sidewalk in front of defendant's apartment house for several months prior to the accident.

There was no showing that either the defendant, or any of its tenants, operated or were responsible for the operation of any of the trucks or other vehicles which used this driveway and ran their wheels over the curb and sidewalk at the sides of the driveway.

Plaintiff's evidence as to the physical condition of the driveway and sidewalk and the operation of vehicles using the driveway came solely from the testimony of plaintiff and his wife. Defendant's only witness was a photographer, who gave evidence of measurements of the driveway and identified pictures thereof. Plaintiff relies on only one point for reversal and this is that the trial court erred in setting aside the verdict and entering judgment for defendant in accordance with its motion for a directed verdict, or in the alternative, granting defendant a new trial. Plaintiff asserts that he made a submissible case under the existing law.

Plaintiff does not contend that defendant's liability results from any affirmative act committed by defendant; rather he asserts that the use of the driveway by the various trucks and other vehicles, as described above, constituted a special use of the sidewalk by and for the benefit of defendant and that such special use caused the defects in the sidewalk and that the defendant negligently failed to repair such defects and that such negligence caused plaintiff's injury. In support of this contention plaintiff relies primarily on a citation from 63 C.J.S. Municipal Corporations § 861, p. 226, where it is stated, 'Thus the abutting owner or occupant will be liable where he uses the sidewalk for his own private benefit or convenience and fails to exercise reasonable care to prevent injury to persons lawfully using the way.' He further quotes from a later paragraph in this same section, page 227: 'Where a sidewalk is used as a driveway for vehicles by an abutting owner or occupant, the special use carries with it the duty not to permit the use to create conditions unsafe for the passing thereon of pedestrians, or if it does create such conditions not to allow them to remain for an unreasonable time, * * *' Although this quotation asserts that the use of a sidewalk for a driveway by an abutting property owner constitutes a special use, an examination of the cases cited in support thereof reveals, in each instance, a fact situation with something more than mere user, on which liability is based.

We have carefully examined all of the authorities cited in C.J.S. supra, and by the parties, together with a large number of additional cases discovered through our own not inconsiderable research and have been unable to find any case wherein liability was imposed upon the abutting landowner in a fact situation comparable to that presented in the case at bar. See Annotation 88 A.L.R.2d 331. There are numerous cases where the landowner, or his predecessor, has removed the existing sidewalk constructed by the city and in its place has installed a specially constructed driveway for use in connection with the abutting premises. In such cases it appears that the law imposes upon the abutting landowner a duty, in the first instance, to replace the sidewalk with a structure which is reasonably safe for pedestrian traffic, and having affirmatively changed the condition of the existing sidewalk by the installation of the special driveway, the landowner has a continuing duty to maintain such special structure in a condition reasonably safe for pedestrian travel. See among the many cases, Moore v. Monarch Gasoline & Oil Co., 225 Mo.App. 115, 35 S.W.2d 669; Cuddy v. Shell Petroleum...