Lithegner v. City of St. Louis

• Decision Date: 07 March 1939
• Docket Number: No. 24861.,24861.
• Citation: 125 S.W.2d 925
• Court: Missouri Court of Appeals
• Parties: LITHEGNER v. CITY OF ST. LOUIS.

125 S.W.2d 925

LITHEGNER v. CITY OF ST. LOUIS.

No. 24861.

St. Louis Court of Appeals. Missouri.

March 7, 1939.

Rehearing Denied March 21, 1939.

Appeal from St. Louis Circuit Court; Eugene J. Sartorius, Judge.

"Not to be reported in State Reports."

Suit by Florence Lithegner against the City of St. Louis, for injuries resulting from a fall upon a public sidewalk. From a judgment on a verdict for plaintiff, defendant appeals.

Affirmed.

Edgar H. Wayman, City Counselor, and David A. McMullan, Associate City Counselor, both of St. Louis, for appellant.

Reardon & Lyng, John F. Clancy, and John H. Martin, all of St. Louis, for respondent.

McCULLEN, Judge.

This suit was begun by respondent, as plaintiff, against appellant, as defendant, to recover damages for personal injuries alleged to have been sustained by plaintiff resulting from a fall upon a public sidewalk in the City of St. Louis, Missouri. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff against defendant in the sum of $3,500. Defendant has duly appealed to this court from said judgment.

Plaintiff's petition alleged in substance that, on June 5, 1936, and for a long time prior thereto, there was a concrete sidewalk in front of 4427 Bessie Avenue in the City of St. Louis, Missouri, in which one of the slabs of concrete was depressed below the level of the other portions of said sidewalk; that about 10:45 o'clock P.M. on June 5, 1936, while plaintiff was walking upon said sidewalk in front of said 4427 Bessie Avenue, her foot came down at a point where said depressed slab of concrete joins the slab of concrete to the west thereof; that, on account of the unevenness of said sidewalk at that point, plaintiff was caused to be thrown violently down thereon thereby causing her to sustain serious injuries.

The petition further alleged that plaintiff's injuries were directly caused through defendant's negligent failure to exercise ordinary care to maintain said sidewalk in a reasonably safe condition for pedestrians using the same in that a slab of said concrete sidewalk at the number mentioned was depressed below the level of the adjoining slabs thereof, thereby rendering the sidewalk dangerous for pedestrians using the same, when defendant knew, or by the exercise of ordinary care could have known, of and could have remedied such condition in time to have prevented the injuries to plaintiff. The petition further alleged in detail the injuries sustained by plaintiff, but there being no question raised in this court as to the amount of the damages, it is unnecessary to describe the injuries.

The answer of the defendant was a general denial coupled with a plea of contributory negligence. Plaintiff's reply was a general denial of the allegations of defendant's answer.

The testimony of plaintiff shows that, on June 5, 1936, at about 10:40 P.M., plaintiff, a married woman, fifty-two years of age, with her husband and son in law, left the home of plaintiff's daughter at 4441a Bessie Avenue, where she had been visiting. Bessie Avenue is an east and west street, sloping down, at the place mentioned, towards the east. As the party of three walked eastward on the sidewalk on the north side of Bessie Avenue, plaintiff's husband was a little in front of her and a little to the left, while her son in law, Albert Woerheide, was a little in back of her and a little to the left, plaintiff being on the outer side of the sidewalk. When plaintiff reached a point in front of 4427 Bessie Avenue, about five doors east of her daughter's home, at a point about twelve or fifteen feet from a lamp post, the ball of her right foot caught on the seam between two blocks of the concrete pavement, causing her right foot to turn, throwing her forward and causing her to fall to the ground. Plaintiff testified that she had never been over that part of the sidewalk prior to the time she fell.

John A. Lithegner, plaintiff's husband, gave testimony corroborating plaintiff's testimony as to the place and manner of her fall. He stated that he was two or three steps in front of plaintiff, "and all of a sudden I looked around and she started going down, and it happened so quick I didn't have no chance to grab her, or do anything." He gave no testimony as to the difference in height of the concrete slabs of the sidewalk.

The testimony of Albert Woerheide, plaintiff's son in law, also corroborated the testimony of plaintiff as to the place and manner of her fall. He gave no testimony concerning the difference in elevation of the concrete slabs in the sidewalk.

Vernice Engemann, plaintiff's daughter, at whose home plaintiff had been visiting that evening, testified that several days thereafter she measured the difference in elevation between the two slabs of concrete at the place where her mother had fallen, and found it was "almost three inches."

Harold Sneckren, a commercial photographer, testified that he made photographs of the sidewalk in the 4400 Block on Bessie Avenue, and identified plaintiff's Exhibits A and B as pictures thereof. It is not disputed that the pictures are of the sidewalk in question. He stated that the pictures were taken on June 10, 1936.

Mrs. Carrie Heuer testified that she was the owner of the premises at 4427 Bessie Avenue; that she had lived at that address for fourteen years. In the first part of her testimony this witness testified that she had never noticed the sidewalk until after the accident happened; that "we had no complaints." She further testified that the sidewalk was well lighted; that the difference in elevation of the two slabs of concrete in question was from three-quarters of an inch to an inch; that she did not believe it was more than an inch. When the court reconvened after an adjournment for the noon recess, the witness stated that during the noon recess she had an opportunity to refresh her recollection as to the condition of the sidewalk, and testified that about four months previous to the accident she had personally observed a change in the level of the slabs of concrete in the sidewalk; that there had been lots of rainfall in 1935.

William J. Gleason, a photographer employed by defendant, testified that on June 8, 1936, he took a picture of the sidewalk in front of 4427 Bessie Avenue, where plaintiff's testimony shows she fell. This picture was marked defendant's Exhibit 1 and was introduced in evidence. The picture shows a ruler in an upright position, resting on the surface of the depressed concrete slab and against the higher of the two slabs, and shows the difference in elevation between said slabs to be an inch and a quarter. The witness described in detail how he placed the ruler, which he said was a black and white Stobie ruler, a regular standard ruler.

Walter Hilgendorf, living at 4433 Bessie Avenue, the second door west from 4427 Bessie Avenue, testified on behalf of defendant that he had lived there eleven years; that he was familiar with the condition of the sidewalk in front of number 4427; and that there was a difference in elevation between the slabs immediately west of the entrance to 4427 Bessie Avenue; that the difference in height between the two slabs, in his opinion, was between three-quarters of an inch and an inch, not more than an inch; that he never did definitely measure it but noticed it in passing; and that it had always been like that as far as he could remember.

Richard F. Goesling testified on behalf of defendant that he was employed by defendant in its lighting division; that he made an examination of the lighting condition in front of 4427 Bessie Avenue; that there was a light immediately east of the property line of 4427 Bessie Avenue, an old gas light, converted into an electric light containing a one hundred candle power light; that the records show that, on the night of June 5, 1936, the light was on. On cross-examination, the witness stated the lights were converted from gas into electric lights on August 15, 1935.

Frank Zimmer, a police officer, testified that he examined the sidewalk in question on the evening of June 5, 1936, after having been notified that plaintiff had fallen there; that he did not measure the difference between the elevation of the two slabs of concrete, but that, in his judgment, the difference was an inch or an inch and a half.

There was testimony by other witnesses, but it has no bearing on the questions involved in this appeal.

Defendant's first contention is that the court erred in overruling its objection to the testimony of witness Mrs. Carrie Heuer that "a trench was dug up along the sidewalk and electric lights were put in in 1935"; and in refusing to strike out said testimony; also in refusing to declare a mistrial on that ground. Defendant contends that said testimony was irrelevant and immaterial because there was no showing that the work done in 1935 caused or contributed to cause the condition of the sidewalk at the time plaintiff fell thereon; that there was no allegation that defendant negligently caused the excavation and there was no evidence that said work was done by defendant. When Mrs. Heuer was first asked if any work had been done by defendant between the sidewalk and the curb, objection was made by defendant on the ground that the petition did not allege that any work was negligently done by defendant; and that the witness was not qualified to state that said work caused the condition of the sidewalk complained of to exist. The court sustained this objection. After the noon recess of the court heretofore referred to, when, as she said, she had refreshed her recollection about the matter, the witness was again asked whether or not in 1935 any excavating was done in the grass plot between the sidewalk and the curb. Defendant's objection was renewed, with the additional ground that, in view of the statement of the witness that she had noticed the difference in elevation of the two slabs about four...