McGarvey v. City of St. Louis, 40902.

Decision Date14 February 1949
Docket NumberNo. 40902.,40902.
PartiesGERTRUDE McGARVEY, Respondent, v. THE CITY OF ST. LOUIS, a Municipal Corporation, Appellant.
CourtMissouri Supreme Court
218 S.W.2d 542
GERTRUDE McGARVEY, Respondent,
v.
THE CITY OF ST. LOUIS, a Municipal Corporation, Appellant.
No. 40902.
Supreme Court of Missouri.
Division One, February 14, 1949.
Rehearing Denied, March 14, 1949.

Appeal from Circuit Court of City of St. Louis. — Hon. Robert L. Aronson, Judge.

[218 S.W.2d 543]

AFFIRMED (subject to remittitur).

George L. Stemmler, Harry R. Stocker and John P. McCammon for appellant.

(1) Instruction 1, given at the plaintiff's request, is misdirection for the reason that said instruction, while requiring a finding that a hole existed in the sidewalk and curbing and that they were in a dangerous and unsafe condition, does not require a finding that knowledge of such defect be brought home to the defendant in time for it, in the exercise of ordinary care, to have repaired the same prior to the date of plaintiff's injury. State ex rel. Long v. Ellison, 217 Mo. 571, 199 S.W. 984; Ballard v. Kansas City, 126 Mo. App. 541, 104 S.W. 1136; Moses v. Kansas City Pub. Serv. Co., 188 S.W. (2d) 538; Allen v. Kansas City, 64 S.W. (2d) 765. (2) Instruction 1, given at the instance of plaintiff, is an incorrect statement of law in that it does not require a finding that the defendant knew, or should have known, of the defect in time to have repaired it before the date on which plaintiff was injured, but improperly directs a verdict for plaintiff if defendant "thereafter" i.e., after plaintiff was injured, could have repaired the curbing and sidewalk. Cases cited under Point (1), supra. (3) Instruction 2, given at the instance of plaintiff, is an incorrect statement of law in that the third paragraph thereof ignores and, in effect, reads out of the instruction all that was said in the first two paragraphs, and directs a recovery on a naked finding that defendant failed to inspect and such failure was negligent. Under this instruction the jury could find that the sidewalk, although defective, was reasonably safe and yet find for plaintiff. The giving of this instruction was error. State ex rel. Long v. Ellison, 217 Mo. 571, 199 S.W. 984; Cantley v. M.-K.-T.R. Co., 353 Mo. 605, 183 S.W. (2d) 123; Blackwell v. Union Pacific R. Co., 331 Mo. 34, 52 S.W. (2d) 814. (4) The giving of Instruction 2 at plaintiff's request was error for the reason that said instruction is misleading in that it predicates a verdict on the failure to inspect without reference to the condition of the sidewalk and curbing on which plaintiff fell. Cases cited under Point (3), supra. (5) Instruction 2, given at the behest of plaintiff, and Instruction 5, given at defendant's request, are in hopeless and irreconcilable conflict in this: that Instruction 2 directs a verdict for plaintiff upon a finding of negligent failure to inspect and Instruction 5 authorizes a verdict for defendant upon a finding that the sidewalk and curbing were in reasonably safe condition. Under these circumstances the giving of Instruction 5 did not cure the error in Instruction 2, and Instruction 2 erroneously omitted elements necessary for a recovery by plaintiff. State ex rel. City of Jefferson v. Shain, 344 Mo. 57, 124 S.W. (2d) 1194; And cases cited under Point (3), supra. (6) Instruction 12 on the measure of damages erroneously included as an element of damage the extent to which plaintiff's ability to work and labor had been impaired, in the face of the evidence showing that plaintiff sustained no impairment of her ability to work and labor. Wild v. Pitcairn, 347 Mo. 915, 149 S.W. (2d) 800; Devlin v. St. Louis, 252 Mo. 203, 158 S.W. 346. (7) Under the evidence the verdict was grossly excessive. Weisman v. Arrow Trucking Co., 176 S.W. (2d) 37; Johnson v. St. Louis, 138 S.W. (2d) 666; Kramer v. Laspe, 94 S.W. (2d) 1090.

Orville Richardson and J.O. O'Connell Hough for respondent.

(1) The court did not err in giving Instruction 1 for plaintiff. Whether read alone in its entirety or in conjunction with other instructions, it submitted whether the defendant had failed to exercise ordinary care in failing to repair the hole after it was charged with constructive notice thereof. The evidence was uncontradicted that this defect had existed for many years prior to plaintiff's fall, and under such circumstances it was not necessary to submit in factual detail and in so many words that the defendant was entitled to an additional time to repair the defect after its existence was charged to the defendant's knowledge. Hitt v. Kansas City, 110 Mo. App. 713, 85 S.W. 669; Wilson v. St. Joseph, 139 Mo. App. 564, 123 S.W. 504; Barnes v. St. Joseph, 151 Mo. App. 513, 132 S.W. 318; Drimmel v. Kansas City, 180 Mo. App. 339, 168 S.W. 280. (2) The cases of Ballard v. Kansas City and Allen v. Kansas City, relied upon by defendant, are distinguishable. Where an instruction, such as that in the case at bar, submits whether the defendant failed to exercise ordinary care in failing to repair a defect after it received notice in time to do so, that is equivalent to a submission that the defendant knew of the defect in time by the exercise of reasonable care to have repaired it. Barr v. City of Kansas City, 105 Mo. 550, 16 S.W. 483; Lithegner v. St. Louis, 125 S.W. (2d) 925; Moses v. Kansas City Pub. Serv. Co., 188 S.W. (2d) 538; Hunt v. Kansas City, 345 Mo. 108, 131 S.W. (2d) 514; Walsh v. St. Louis, 346 Mo. 571, 142 S.W. (2d) 465; Merritt v. Kansas City, 46 S.W. (2d) 275; Scanlon v. Kansas City, 19 S.W. (2d) 522. (3) The Ballard and Allen cases, relied upon by defendant, are in direct conflict with controlling and other decisions of this State approving instructions which did not even submit, as in the case at bar, an express issue of whether defendant failed to exercise ordinary care. Barr v. City of Kansas City, 105 Mo. 550, 16 S.W. 483; Hitchings v. City of Maryville, 134 Mo. App. 712, 115 S.W. 473; Irwin v. Kansas City, 173 Mo. App. 711, 160 S.W. 30; Kingsley v. Kansas City, 166 Mo. App. 544, 148 S.W. 170; Drimmel v. Kansas City, 180 Mo. App. 339, 168 S.W. 280; Hebenheimer v. St. Louis, 269 Mo. 92, 189 S.W. 1180; Burdoin v. Town of Trenton, 116 Mo. 358, 22 S.W. 728. (4) The Ballard and Allen cases may also be distinguished on the ground that Instruction 1 for plaintiff must be read in connection with Instructions Nos. 4, 5 and especially No. 6 for the defendant, all of which conversely amplified the issue of negligence submitted in plaintiff's Instruction 1. Barr v. City of Kansas City, supra; Hebenheimer v. St. Louis, 269 Mo. 92, 189 S.W. 1180; Burdoin v. Town of Trenton, 116 Mo. 358, 22 S.W. 728; Rishel v. K.C. Pub. Serv. Co., 129 S.W. (2d) 851. (5) The court did not err in giving Instruction 2. This instruction must be read in the conjunctive, as a whole, and in connection with other instructions. Quigley v. St. Louis Pub. Serv. Co., 201 S.W. (2d) 169; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W. (2d) 366. (6) The city was under an active and continuous duty to inspect its sidewalks and curbs and was negligent in failing to have performed this duty. Megson v. City of St. Louis, 264 S.W. 15; Miller v. Town of Canton, 112 Mo. App. 322, 87 S.W. 96; Bodine v. City of Richmond, 75 Mo. 437; Barr v. Kansas City, 105 Mo. 550, 16 S.W. 483; Drake v. Kansas City, 190 Mo. 370, 88 S.W. 689; Jegglin v. Roeder, 79 Mo. App. 428; 43 C.J. 1053, Sec. 1827. (7) The City's failure to inspect under the facts conjunctively submitted in Instruction No. 2 was one of the direct and proximate causes of plaintiff's injury. Miller v. Town of Canton, 112 Mo. App. 322, 87 S.W. 96; Barken v. S.S. Kresge Co., 117 S.W. (2d) 674; Zesch v. Abrasive Co. of Philadelphia, 353 Mo. 558, 183 S.W. (2d) 140; Nelson v. Evans, 338 Mo. 991, 93 S.W. (2d) 691; Lanio v. K.C. Pub. Serv. Co., 162 S.W. (2d) 862; 45 C.J. 873. (8) There was no conflict between Instructions 2 and 5. Instruction 2 properly declared the law, as demonstrated under (5), (6) and (7) above. If there was conflict, which we deny, then it could only be because of error in Instruction 5 given for defendant, on account of which defendant cannot complain on appeal. Scott v. Mo. Pac. R. Co., 333 Mo. 374, 62 S.W. (2d) 834. (9) Instruction 5 was merely a converse of one of the constitutive elements of plaintiff's case and did not in any manner conflict with Instruction 2. (10) There was substantial evidence that plaintiff's ability to work and labor has been and will be diminished and impaired as a result of her injury. The Court committed no error in giving Instruction 12 submitting that item as an element of plaintiff's damages. Wolfe v. Kansas City, 334 Mo. 796, 68 S.W. (2d) 82; King v. City of St. Louis, 250 Mo. 501, 157 S.W. 498. (11) Even if there had been no evidence whatsoever except that plaintiff's injuries are permanent, an instruction submitting an impairment of her working ability would have been justified. Byars v. St. Louis Pub. Serv. Co., 334 Mo. 278, 66 S.W. (2d) 894; Dean v. K.C., St. L. & C.R. Co., 199 Mo. 386, 97 S.W. 910; Taylor v. Terminal Railroad Assn., 112 S.W. (2d) 944. (12) Even if the evidence was not otherwise substantial, and we contend that it was, the plaintiff would at least be entitled to nominal damages on this item, and since the instruction was in proper form, defendant's failure to request a limiting instruction disables it from assigning error on appeal. Taylor v. Terminal Railroad Assn., supra. (13) The verdict is not excessive. Taylor v. Lumaghi Coal Co., 352 Mo. 1212, 181 S.W. (2d) 536; Christiansen v. St. Louis Pub. Serv. Co., 333 Mo. 408, 62 S.W. (2d) 828; Manley v. Wells, 292 S.W. 67; Brady v. Terminal Railroad Assn. of St. Louis, 344 Mo. 502, 127 S.W. (2d) 1; Rosenberg v. Terminal Railroad Assn. of St. Louis, 159 S.W. (2d) 633; Godsy v. Thompson, 352 Mo. 681, 179 S.W. (2d) 44; De Moulin v. Roetheli, 354 Mo. 425, 189 S.W. (2d) 562.

BRADLEY, C.


Plaintiff (respondent) was injured when she stepped into a hole in the sidewalk and curbing as she started to step from the street to the sidewalk at...

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