Luettecke v. City of St. Louis

• Decision Date: 07 May 1940
• Docket Number: 36279
• Citation: 140 S.W.2d 45,346 Mo. 168
• Parties: Jeanne Luettecke, Appellant, v. City of St. Louis, Caesar Goggio and Theresa Goggio, his wife
• Court: Missouri Supreme Court

140 S.W.2d 45

346 Mo. 168

Jeanne Luettecke, Appellant, v. City of St. Louis, Caesar Goggio and Theresa Goggio, his wife

No. 36279

Supreme Court of Missouri

May 7, 1940

Motion for Rehearing Overruled May 7, 1940.

Appeal from Circuit Court of City of St. Louis; Hon. Harry F Russell, Judge. Opinion filed at September Term, 1939 March 6, 1940; motion for rehearing filed; motion overruled at May Term, 1940, May 7, 1940.

Affirmed.

Hall & Todd for appellant.

(1) Respondent city was under a non-delegable duty to exercise ordinary care to maintain its improved sidewalk in a reasonably safe condition for use by pedestrians. Norton v. St. Louis, 97 Mo. 541; Russell v. Columbia, 74 Mo. 490. (2) Respondent city had notice or was charged with notice that the sidewalk in the south half of the 2800 block South Compton Avenue had been improperly laid. It had notice of the operation of natural laws, of weather conditions, and that the danger of the sidewalk where respondent fell and was injured would become progressively more dangerous for the use of pedestrians. Benton v. St Louis, 248 Mo. 108. (3) If the evidence of plaintiff with all reasonable inference therefrom tends to show negligence and reasonable minds might differ on the question, the question must be submitted to the jury, unless the evidence shows beyond question that the plaintiff's own negligence was the proximate cause of her injuries. Wilkes et al. v. Gilliam, 80 S.W.2d 704; Wilhelm v. Buchanan Co., 131 S.W.2d 806; Smith v. Hutchinson, 83 Mo. 691; Harding v. St. Joseph, 7 S.W.2d 711; Festus v. Kausler, 105 S.W.2d 648. (4) Although respondent city might delegate authority to construct the sidewalk, it could not escape responsibility for what was done under its permit. Norton v. St. Louis, 97 Mo. 537; Russell v. Columbia, 74 Mo. 480. (5) Where the grantee of an abutting property owner maintains an artificial structure on his property which causes an excessive discharge of water on the sidewalk in front of his property which renders the sidewalk more dangerous in any degree, and proximately causes injuries to pedestrians using such sidewalk while in the exercise of ordinary care for their own safety, the abutting property owner is liable. Stith v. Newberry Co., 79 S.W.2d 453; Cool Co. v. Rohrbach, 21 S.W.2d 921; Merrill v. St. Louis, 83 Mo. 256; Callaway v. Mercantile Co., 12 S.W.2d 494.

Edgar H. Wayman and Jerome Simon for City of St. Louis.

(1) The action of the trial court in giving the peremptory instruction in the nature of a demurrer to the evidence, offered by defendants, the city of St. Louis, at the close of plaintiff's case, was entirely proper for the reason that none of her evidence showed that she was entitled to recover from this defendant and hence no submissible case was made for the jury. (a) If accident might have resulted from more than one cause, plaintiff must prove that injury arose from a cause for which defendant is liable. Hayes v. Kresge Co., 100 S.W.2d 325; Warner v. St. Louis & Meramec River Ry. Co., 178 Mo. 134, 77 S.W. 67; Fink v. Ry. Co., 161 Mo.App. 327, 143 S.W. 568; Rogers v. Packing Co., 180 Mo.App. 236, 166 S.W. 880; Caudle v. Kirkbride, 117 Mo.App. 417, 93 S.W. 868; Pippin v. Construction Co., 187 Mo.App. 370, 172 S.W. 1191. (b) Facts stated and statements made by plaintiff's counsel in the course and conduct of the trial are concessions which bind plaintiff. Walsh v. Mo. Pac. Ry. Co., 102 Mo. 588; Pratt v. Conway, 148 Mo. 299; Mannion v. Hancock Mut. Life Ins. Co., 273 S.W. 203; Hampe v. Versen, 32 S.W.2d 796; McNatt v. Wabash Ry. Co., 74 S.W.2d 629; Hurst v. Montgomery Ward & Co., 107 S.W.2d 183; McGuire v. Springfield Traction Co., 30 S.W.2d 794. (2) A municipality is not liable for a slippery condition of its sidewalks produced by natural causes such as sleet or combined rain and freezing and general in its extent. Vonkey v. St. Louis, 219 Mo. 37, 117 S.W. 733; Reedy v. St. Louis Brewing Assn., 161 Mo. 523. (3) A municipality is not required to keep its sidewalks on an absolutely even plane and is not liable for every slight or trivial defect or obstruction or every mere inequality or irregularity of surface of the sidewalk. Taylor v. Kansas City, 112 S.W.2d 562; Maxwell v. Kansas City, 52 S.W.2d 487, 227 Mo.App. 234; Ray v. Poplar Bluff, 102 S.W.2d 814; O'Malley v. St. Louis, 119 S.W.2d 785; Lundahl v. Kansas City, 209 S.W. 564, 13 R. C. L., p. 399; 7 McQuillin on Municipal Corps. (2 Ed.), pp. 125, 151, Secs. 2929, 2956, also Sec. 2974, p. 164; 20 Ann. Cas. 796. (a) Actual measurements of elevation in sidewalk offered in evidence by plaintiff should prevail over speculative estimates. Maxwell v. Kansas City, 52 S.W.2d 487, 52, 227 Mo.App. 234. (4) Before the city could be held liable for an obstruction on the sidewalk it must be shown that it knew, or in the exercise of ordinary care should have known, in time to have remedied the condition. And even after notice the city is entitled to a reasonable time in which to remedy such condition. Allen v. Kansas City, 64 S.W.2d 765; Baustian v. Young, 152 Mo. 317; Gerber v. Kansas City, 105 Mo.App. 191.

Jones, Hocker, Gladney & Grand and William G. O'Donnell for Caesar and Theresa Goggio.

(1) An abutting property owner is not liable to a pedestrian for maintaining a terrace on his premises which caused water to flow onto the sidewalk where such act did not cause or contribute to cause the pedestrian's injuries. Beck v. Ferd Heim Brewing Co., 167 Mo. 195, 66 S.W. 928; Baustian v. Young, 152 Mo. 317, 53 S.W. 921. (2) An abutting property owner is only liable to a pedestrian for injuries resulting from a defective condition of the sidewalk in front of his premises when he creates that dangerous condition by his affirmative wrongful act. Russell v. Sincoe Realty Co., 293 Mo. 428, 240 S.W. 147; Callaway v. Newman Mercantile Co., 321 Mo. 766, 12 S.W.2d 491; Fadem v. St. Louis, 99 S.W.2d 511; Stith v. Newberry Co., 336 Mo. 467, 79 S.W.2d 447. (3) Where the evidence shows that the injuries to plaintiff may have resulted from two or more causes, for only one of which the defendant would be liable, and where only by speculation and conjecture can it be said that the negligence of defendant was the cause of plaintiff's injuries, then she cannot recover. State ex rel. v. Shain, 342 Mo. 588, 116 S.W.2d 99; Hayes v. Kresge Co., 100 S.W.2d 325.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is an action for damages for personal injuries alleged to have been sustained by plaintiff on account of the negligence of defendants. At the close of plaintiff's case, the court directed a verdict for defendants. Plaintiff, thereupon, took an involuntary nonsuit with leave to move to set the same aside. Plaintiff failed to get said nonsuit set aside on motion, and appealed from the judgment dismissing her suit. Damages were asked in the sum of $ 20,000, hence our jurisdiction.

Appellant assigns error on the court's action in giving instructions in the nature of demurrers to the evidence directing a verdict for respondents.

The petition alleged that, due to the construction and maintenance of a terrace which encroached upon the street, water was discharged upon an inclined sidewalk in front of respondents' (Goggios) property; that ice accumulated on the sidewalk; that due to the construction of the sidewalk on an incline, with a part of the street curb at the alley extending into and above the level of said sidewalk, a dangerous nuisance was created; that appellant, while using the sidewalk, slipped on the ice, slid toward the alley, struck the projecting curb, and was thrown into the alley and was injured. The answers of respondents were general denials and pleas of contributory negligence.

Appellant says the negligence was as follows: "The negligence of the respondent city consisted in permitting an improperly constructed sidewalk and an ornamental terrace which cast excessive drainage onto that defective sidewalk, which it knew was liable to freeze, and become dangerous to pedestrians, to remain in that dangerous condition long after it knew or ought to have known of the danger. . . . The negligence of respondents Goggio consisted of maintaining a high terrace on their property which caused excessive drainage to run upon a defective sidewalk which they charged with notice was liable to freeze on the incline in the sidewalk and cause it to become dangerous to pedestrians."

The evidence tended to show that for over two years appellant and her husband had been tenants of an apartment house on the east side of South Compton Avenue in the City of St. Louis; that they were tenants there when Goggios purchased the property; that the apartment entrance was about 5 feet above the level of the sidewalk; that seven concrete steps and an iron rail bannister led up to the entrance; that on each side of said steps a terrace extended down to the level of the sidewalk; that the building was back 17 feet from the sidewalk; that a yard or terrace crown 2 feet wide extended in front of the building; that the terrace sloped toward the sidewalk and that the property was immediately south of an alley.

The sidewalk was built in 1928. The permit for construction issued to the former owner provided for a 5-foot sidewalk to be located 5 feet from the curb and 2 feet from the property line. At least this was the regulation then in force. The final measurements by the city, when the work was completed indicated that the sidewalk was 4.9 feet in width; that it was located 2 1/2 feet from the curb; that the terrace encroached 1 1/2 feet upon the city property; and that a 6 inch grass plot existed between the property line and the edge of the sidewalk. The report shows 12 feet between the curb and the...