Lovins v. City of St. Louis

• Decision Date: 04 February 1936
• Docket Number: No. 23881.,23881.
• Citation: 90 S.W.2d 430
• Parties: LOVINS v. CITY OF ST. LOUIS et al.
• Court: Missouri Court of Appeals

90 S.W.2d 430

LOVINS v. CITY OF ST. LOUIS et al.

No. 23881.

St. Louis Court of Appeals. Missouri.

February 4, 1936.

Rehearing Denied February 18, 1936.

Appeal from St. Louis Circuit Court; Arthur H. Bader, Judge.

"Not to be published in State Reports."

Action by Gertrude Lovins against the City of St. Louis and others. From a judgment for plaintiff, defendants appeal.

Affirmed.

Green, Henry & Remmers, of St. Louis, for appellants Zemel and Jacob W. and Genevieve M. Ratz.

Charles M. Hay, City Counselor, and E. H. Wayman and Forrest G. Ferris, Jr., Associate City Counselor, all of St. Louis, for appellant City of St. Louis.

Erwin F. Vetter and Hays & Dyott, all of St. Louis, for respondent.

McCULLEN, Judge.

This is a suit for damages brought by respondent, plaintiff, against the city of St. Louis and six individual defendants for personal injuries alleged to have been sustained by plaintiff as the result of falling in a hole in a sidewalk on Eastgate avenue in the city of St. Louis on January 28, 1928. Plaintiff dismissed as to the two defendants Darr, and the jury found in favor of defendant Honigberg under a peremptory instruction given by the court at the close of plaintiff's evidence.

At the conclusion of all the evidence the cause was submitted to the jury, and they returned a verdict in favor of plaintiff and against defendants city of St. Louis, Max Zemel, Jacob W. Ratz, and Genevieve M. Ratz in the sum of $2,500. From the judgment thereon two separate appeals were taken, one by the defendant city of St. Louis, and the other by the defendants Max Zemel, Jacob W. Ratz, and Genevieve M. Ratz. The appeals were taken to the Supreme Court, which court held that it had no jurisdiction thereof and transferred the cause to this court. See Lovins v. City of St. Louis et al. (Mo.Sup.) 84 S.W. (2d) 127.

The appeals have been consolidated by this court of its own motion and will be treated herein as one case.

No questions are raised as to the pleadings. It is, therefore, sufficient to say here that the petition charged that defendants negligently permitted the sidewalk in front of the buildings numbered 626 and 702 Eastgate avenue, a public street in the city of St. Louis, to be and remain for a long time in an unsafe condition by reason of large depressions in the driveway leading over said sidewalk between the two buildings mentioned, and as a direct result of such negligence plaintiff fell in said depressions and was injured.

The individual defendants were charged with said negligence as the owners in charge and control of the buildings and driveway.

The defendants filed general denials coupled with pleas of contributory negligence. The defendant city in its answer also charged negligence against the individual defendants as owners in control of the property named.

Plaintiff's reply was a general denial.

The defendants assign as error the action of the court in refusing to give instructions in the nature of demurrers to the evidence offered at the close of plaintiff's case and at the close of the entire case, and urge in support thereof that the evidence showed plaintiff to be guilty of contributory negligence as a matter of law. These assignments necessitate a review of the evidence.

The evidence shows that Delmar avenue runs east and west, and that Eastgate avenue is a short street which runs north and south in the city of St. Louis, a municipal corporation under the laws of Missouri. Both are open public streets.

Plaintiff testified that in January, 1928, she lived at 6300 Cates avenue with her mother and a young lady named Miss Estelle Molter; that Cates avenue is the third street north of Delmar avenue and that 6300 is about halfway between Eastgate and Westgate avenues; that Eastgate avenue runs from Delmar avenue north to Olive Street road; that on the day in question she had visited Loew's State Theatre down town and left the theater about 6:30 p. m.; that she boarded a street car and got off at Delmar avenue and Skinker road; that Eastgate avenue is one block west of Skinker road; that after getting off the street car she stopped at a store and purchased some apples, went to a drug store where she purchased a bottle of medicine for her mother, and then walked north on Eastgate avenue on the east side of the street; that as she was walking along she stumbled with her right foot and fell into a hole in the sidewalk.

Photographs showing the sidewalk in front of and the driveway between the apartment houses on Eastgate avenue numbered 626 and 702 were introduced in evidence as Plaintiff's Exhibits A and B. Plaintiff identified the photographic exhibits and pointed out thereon the holes in the driveway, between the two apartment houses at a point where the driveway crosses the sidewalk, as the holes into which she fell.

Plaintiff gave her age as 43 years, and testified that she is very nearsighted, and that on the occasion in question she was wearing ordinary nearsighted lenses; that it was very dark at the time she fell; that there was a street light at the alley about three apartment houses south of the place where she fell which she noticed was burning as she passed along, but the light therefrom was not sufficient to enable her to see the holes into which she fell; that she did not see the holes before she fell, but after her fall she got up, looked around, and by the aid of light coming from the doorway or window of the nearby apartment, she then could see the holes in the sidewalk part of the driveway; that she had never before walked on Eastgate avenue, but usually went through an alleyway.

She testified that on the evening in question the weather was cold; that she was wearing low-heeled shoes and had on a heavy coat; that there was a cold breeze blowing from the north, and as she walked northwardly on the sidewalk in question she had her head down facing the wind, although she would not say her head was "real low down"; that she was walking very briskly as she usually does, and could not see very far ahead because her eyes watered a good deal, due partly to the wind; that she had on her glasses; that the hole in the sidewalk into which she fell was between seven and ten inches deep, a foot and a half wide, and two feet long. Pointing to Plaintiff's Photographic Exhibit A, plaintiff stated she stepped into one hole with her right foot and stumbled into the other hole shown on said exhibit.

The Photographic Exhibits A and B show a concrete driveway which leads in from Eastgate avenue between two apartment house buildings and crosses the concrete sidewalk at a right angle. The exhibits show irregular shaped holes and depressions where automobiles crossing the sidewalk in the driveway at that point have broken the concrete, exposing in numerous places the cinders which support the concrete. The evidence shows the driveway to be nine feet wide. The concrete sidewalk is five feet wide, being separated from the gutter of the street by a parkway seven feet wide.

There was some testimony to the effect that the holes in the sidewalk had been filled in some time after plaintiff's fall and that the photographic exhibits did not correctly show the depth thereof, but since none of the defendants make any contention with respect to this phase of the case, we deem it unnecessary to go into any further details thereon.

Estelle Cappel, who was formerly Estelle Molter, testified that in January, 1928, she lived at 6300 Cates avenue with plaintiff; that she frequently walked on Eastgate avenue before the time plaintiff sustained her injuries. She identified Plaintiff's Exhibit B as a photograph of the driveway between 626 and 702 Eastgate avenue, and also identified Plaintiff's Exhibit A as a photograph showing a closer view of the holes in the sidewalk part of the driveway. She testified that she passed this place twice a day prior to the date of plaintiff's injuries; that she recognized the holes because they were the only holes on that street; that the holes had been there quite a few months before January, 1928; that the photograph represented the condition of the sidewalk in January, 1928, except that the holes were deeper than they appeared in the photograph; that there were no other holes on Eastgate avenue except those at the place shown in the photograph; that the holes at the time of the accident were eight or nine inches deep; that she saw the holes the following Monday after plaintiff sustained her injuries; that they were in the same condition on Monday, Tuesday, Wednesday, Thursday, and Friday after plaintiff was injured; that she noticed the holes because she "couldn't very well miss them," and whenever it would rain the holes would fill up with water and she would walk around them; that they were pretty broad holes and quite a bit below the level; that there is a street light south of the holes but she did not know how far south, and also a street light across the street; that with the street lights burning the holes could be seen. On further cross-examination this witness was asked:

"Q. When you walked along there around the time of this accident was there anything to prevent you seeing these holes? A. It wouldn't be very possible at night time."

The only evidence introduced by the defendant city of St. Louis was the deposition of defendant Max Zemel showing that Zemel lived in the apartment at 626 Eastgate avenue, and that the driveway between that apartment and the apartment at 702 Eastgate avenue is used for the tenants in both apartment buildings, and also evidence with respect to the ownership of the apartment buildings mentioned.

The only evidence offered by the defendants Ratz and Zemel was the evidence of Dr. C. A. Vosburgh with respect to the injuries of plaintiff.

In determining whether or not plaintiff made a submissible case for the jury, we are required to take plaintiff's evidence as true and give plaintiff the benefit of every reasonable inference...