Loyd v. Levin

• Decision Date: 21 March 1967
• Docket Number: No. 32490,32490
• Citation: Loyd v. Levin, 413 S.W.2d 540 (Mo. App. 1967)
• Parties: Marion LOYD, Plaintiff-Appellant, v. Louis LEVIN and June Levin, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 540

413 S.W.2d 540

Marion LOYD, Plaintiff-Appellant, v. Louis LEVIN and June Levin, Defendants-Respondents.

No. 32490.

St. Louis Court of Appeals, Missouri.

March 21, 1967.

James W. Jeans, Gregg W. Keegan, St. Louis, for plaintiff-appellant.

Holtkamp & Amelung, Eugene S. Heitman, St. Louis, for defendants-respondents.

BRADY, Commissioner.

Plaintiff received a jury verdict in the amount of $3,000.00 in her action for damages wherein she alleged defendants' negligence in failing to remove ice and snow from a common walkway. Following the verdict the trial court sustained defendants' motion for judgment in accordance with their motion for directed verdict offered at the close of all the evidence. Plaintiff appeals.

Among the other difficulties in ascertaining exactly what happened in this case is the fact that both counsel insisted upon using the words 'here' and 'there' and 'right here' and 'this point' when they were referring to the place plaintiff fell. It is obvious that they were pointing to a place on an exhibit but as this court stated in Armstrong v. Westroads Development Co., Mo.App., 380 S.W.2d 529, this manner of procedure, while helpful to the trial court or to the jury, fails to give this court any information. There is no way we can ascertain where 'here' and 'there' actually were with reference to the physical surroundings. Counsel finally had the plaintiff mark on an exhibit the place where she fell. That would solve the problem were it not for the fact that this exhibit is not lodged in this court and we are informed it has been lost. In spite of this and other similar difficulties replete in this transcript we have ascertained the facts, taken in the light required of us by the verdict in favor of plaintiff, to present the following situation.

The following precipitations and temperatures existed in the St. Louis area on the days immediately preceding the plaintiff's fall and on the date of it. On December 7th a total of .24 inches of precipitation fell, there was a 'trace' of snow, and there was no snow on the ground. On the 8th all that was noted was a trace except at 2:00 o'clock when there was a reading of .01 precipitation. There was a trace of snow that day and the maximum temperature was 37 degrees. Again there was no snow on the ground. On December 9th only a trace was noted at all readings with the exception of the 6:00 P.M. reading when .01 precipitation was noted. There was a trace of snow on the ground at 6:00 A.M. and the maximum temperature was 28 degrees. The same is true of the 10th except that at 6:00 P.M. there was .01 precipitation and .03 at midnight. There was a trace of snow on the ground at 6:00 A.M. On December 11th the readings introduced show that .30 inches of precipitation fell, that 4.3 inches of snow or sleet fell, and there was 1 inch of snow or sleet on the ground at 6:00 A.M. of that day. The maximum temperature was 28, the low was 24, and the average was 26. On the day of the accident, the 12th, there was no precipitation of any sort except for a 'trace' noted at the readings taken at 9:00, 10:00, and 11:00 A.M. At 6:00 A.M. of that day there was 4 inches of snow and ice on the ground. The high was 25, the low 15, and the average temperature was 20 degrees.

The plaintiff fell between 10:30 and 11:00 of the morning of the 12th of December. She was a tenant in defendants' building. Her trash or garbage can was placed at the rear of a drive between the building in which she lived and the one next to it. As this drive came from the street toward the rear of the apartment building it was level or approximately so until it reached a point even with the rear door of the last apartment in the building when it sloped downward for a distance of over ten feet. It then leveled out into what was described as sort of a courtyard. It was on this that the garbage pails were placed. The bottom of this slope was roughly seven feet from the garbage pails. The plaintiff's evidence was that the snow had drifted onto this driveway for several days and had melted and the accumulated water had frozen. It was bumpy and uneven as the result of people walking in it and then the footprints refreezing. It is undisputed that there had never been any attempt to remove this accumulation of snow nor to do anything else to make it more safe to walk upon. There was no definite path and people walked down the drive at any place along its width.

The plaintiff's petition alleged the carelessness and negligence of the defendants in failing to clean the walkway of the accumulation of snow. The plaintiff submitted her case on MAI 22.05 (Modified). In its parts pertinent to our decision that instruction reads: "INSTRUCTION NO. 2 Your verdict must be for plaintiff if you believe: First, there was an accumulation of ice covered by snow on the sloping driveway and as a result the driveway was not reasonably safe, and Second, defendants knew, or by using reasonable care should have known, of this condition, * * *."

Defendants' motion for judgment in accordance with their motion for a directed verdict offered at the close of all the evidence was based upon their contention there was a general snowfall in the area and thus they were not under a duty to remove this snow from the common walkway. It was on this ground the trial court sustained the motion. There is no doubt but that this is the rule followed in this jurisdiction as to natural accumulations of snow. See 52 C.J.S. Landlord and Tenant § 417d, p. 46, quoted with approval by this court in Woodley v. Bush, Mo.App., 272 S.W.2d 833. Seeking to avoid the application of that rule to the factual situation here presented the plaintiff advances a novel argument. She does not deny the general snowfall covering this area prior to the plaintiff's fall and indeed, she could not, for such was her own evidence. Instead she urges two reasons why the rule is inapplicable to this case. First, she contends a sloping drive such as involved in this case constitutes an artificial condition. We need not rule upon this rather sweeping generalization. This for the reason that assuming, arguendo, the driveway constitutes such a condition, that fact alone is not sufficient to place a duty upon the defendants. The rule upon which plaintiff seeks to rely is that stated in Feld v. Frankel, Mo., 351 S.W.2d 755, l.c. 757, where, quoting with approval from 26 A.L.R.2d, l.c. 614, 620, it is said the landlord may be liable '* * * 'where the condition has arisen artificially as a result of the landlord's negligence in maintaining either the common passageway itself or some other part of the premises in a defective condition. '' (Emphasis supplied.) In Feld v. Frankel, supra, the sidewalk was depressed so that water was caused to collect and formed ice upon which the plaintiff slipped and fell. In the instant case the plaintiff never made any contention as to any negligence on the part of defendants except in failing to clean off the snow or otherwise make the walk safe. She neither alleged nor proved any negligence on the part of defendants in maintaining...