Megson v. City of St. Louis

• Decision Date: 13 May 1924
• Docket Number: No. 23496.,23496.
• Citation: 264 S.W. 15
• Parties: MEGSON v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

264 S.W. 15

MEGSON v. CITY OF ST. LOUIS.

No. 23496.

Supreme Court of Missouri, In Banc.

May 13, 1924.

Motion for Rehearing Overruled July 3, 1924.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

Action by John E. Megson against the City of St. Louis and another. From a judgment for plaintiff against the City, and for codefendant against plaintiff, the City and plaintiff appeal. Affirmed in banc.

The opinion of Bailey, C., in division, was as follows:

Statement.

On January 17, 1920, John E. Megson commenced an action in the circuit court of the city of St. Louis, Mo., against Laura Griswold, Ellen Griswold, D. Michael, and the city of St. Louis, Mo., to recover damages alleged to have been sustained by him on October 13, 1919, in falling through a defective covering in the sidewalk of said city, located near the Laclede Hotel. On September 29, 1020, the cause was dismissed as to said D. Michael. An amended petition was filed, making Frank Reichmann a party defendant in lieu of said Michael. On April 23, 1921, a second amended petition was filed by leave of court, in which it is alleged that while plaintiff was in the act of leaving the building known as 14 North Sixth street in said city he stepped onto a covering, composed of glass, cemented into an iron frame, covering an areaway or vault, which collapsed beneath his weight, and precipitated him into the cellar beneath. It is charged that said covering gave way, by reason of its being old, worn, rusted, cracked, broken, loose, and shaky; that the part of the sidewalk on which the outer edge of said covering rested was old, worn, decayed, and broken away; that said covering was used to let light into said vault or areaway, and that it extended into the sidewalk in front of said building; that defendants Laura Griswold and Ellen Griswold were the owners of said premises; that they had let the same to Frank Reichmann as tenant, and he was in possession of same as such tenant at the time of the accident; that the defective condition of said covering existed at the time of the letting of said premises to Reichmann; that the city of St. Louis and said tenant, Reichmann, maintained and negligently permitted said defective covering to exist after they knew, or could have known, of its defective condition.

It is admitted on the part of the city that plaintiff, within 90 days of date of accident, gave written notice to the mayor of said city, stating therein the time and place of accident, etc.

The city and Reichmann each filed a separate general denial. The other defendants answered with a joint general denial.

The Evidence.

Sixth street in the city of St. Louis runs north and south. Chestnut street runs east and west. At the southeast junction of said streets there is a building several stories high, occupied by the Laclede Hotel, which has stores on its ground floor, entering on said streets, occupied by other tenants. The defendant Reichmann occupied as a tenant one of the ground floor stores, facing Sixth street, south of Chestnut street, wherein he operated a soft drink parlor. There was a wide public sidewalk adjacent to said building known as 14 North Sixth street, which extended along the sides of same on both Sixth and Chestnut streets. A strip of these sidewalks about three feet wide nearest the building, running parallel to its entire length, was constructed of iron plates, having glass inserts or tiles in them, and covered an areaway, or vault, under the sidewalk. These glass inserts or tiles were round, and several inches in diameter. The remainder of the width of the sidewalks was solid, and paved with concrete or stone slabs. Sixth street at the above place is very much traveled, and is located in the business portion of the city.

Plaintiff testified, in substance, that at the time of trial he was 51 years of age; that he was an engineer, and Diesel engine expert, earning, at the time of the accident, $300 per month; that he resided in the east, but made business visits to St. Louis about every two months for several years prior to the accident; that while in St. Louis on such visits, he stayed at the American Hotel Annex, on Sixth street, south of the Laclede Hotel; that his company maintained a place of business in the Railway Exchange Building, also on Sixth street, north of the Laclede Hotel; that in going from his hotel to the company's place of business he frequently passed Reichmann's place of business, and observed the sidewalk in front of same; that about 5 p. m. on October 13, 1919, and about two hours after he had arrived in St. Louis on one of his vists, he entered Reichmann's place of business through its Sixth street entrance, and in so doing walked over the section of sidewalk in controversy; that, failing to find his friend there for whom he was looking, he returned through the same door, and as he stepped upon said plate section of the sidewalk it gave way under him, and precipitated him into the areaway or vault about 12 feet deep thereunder; that the entire iron plate or section also fell into the vault; that said plate or section had been attached to the concrete sidewalk with a T-iron run along in the concrete and the iron frame set in it; that the section which fell under him was about 3½ feet long and three feet wide; that he had observed this, and other sections of said sidewalk, at various times, during the year prior to his injury; that the iron and glass portion generally along Sixth street was old, worn, rusted, corroded, and broken; that it had been in that state of repair for months prior to the accident; that the portion which fell had been supported by T or angle irons, which had holes rusted or corroded through them; that the edges of the section which fell were rusted, corroded, and said section did not fit snugly against the adjacent parts.

Plaintiff testified that two months before his accident, on October 13, 1919, and numerous times previous to that, he had observed the condition of the iron grating adjacent to the building occupied by Reichmann, on the east siaide of Sixth street; that it was old, worn, and in a broken condition; that when he walked into Reichmann's place of business his mind was on something else, and he did not notice the condition of said covering as he came out; that he could see the corrosion of these plates from the sidewalk; that the condition of the sidewalk at place of injury, for two, four, and six months prior to his injury, and even a year, was corroded and worn.

Frank B. Harris testified for plaintiff, in substance, that he was a police officer of the city of St. Louis on October 13, 1919; that he arrived at the scene of the accident soon after its occurrence, while plaintiff was still down in the vault; that he examined the iron plate which fell and found that its edges were rusted and corroded, as were also the edges of the adjoining sections that did not fall; that a portion of one of the angle irons (Tirons) that had supported the plate was rusted through, had fallen with the plate, and was down in the vault; that it had rusted away there.

Frank W. Dochsel testified on behalf of defendant city, that he was the official sidewalk inspector employed by the city, and had been for 12 years; that reports of defective sidewalks were referred to him for investigation and inspection; that he had on several occasions inspected the sidewalk in question; that the iron plates with glass inserts or tiles were supported by a in or flange of a T-iron; that some time prior to the accident he had found several glass tiles broken in the sidewalk on Chestnut street and Sixth street, one of them being in the plate that later fell; that 2 or 3 days before the accident he inspected the sidewalk and the particular plate that later fell, and went into the vault or areaway thereunder and inspected its under side, and examined it with particular reference to its weight-sustaining capacity; that 2 or 3 days after the accident occurred (of which he had not learned) he, while casually passing, noticed the temporary wooden platform or cover that had been placed over the opening left by the plate that fell; that he inspected and tested this wooden platform, but did not lift it up, and that he did not discover that the plate had fallen or that the platform covered a hole; that he "took it for granted" that it was over the plate he had ordered repaired, and was properly supported, and he made no inquiry as to the reason for the wooden platform; he did not examine the under side of the walk then or at any time after the accident, and received no report that the plate had fallen and that some one had been hurt. He testified as to the tendency of iron to corrode, and that the iron portions of the sidewalk in question were rusted.

Charles Luddenberger testified that after the iron plate fell neither the plate, nor any of the parts that had supported it, were out of place, broken or missing.

At the conclusion of plaintiff's case the following occurred:

Both Reichmann and the city of St. Louis offered separate demurrers to the evidence, and both were overruled. The court gave the jury a peremptory instruction to find for the defendants Laura Griswold and Ellen Griswold, to the giving of which the defendant Reich corroded, mann and the city of St. Louis objected, and saved their exceptions to the ruling of the court in giving same. Thereupon plaintiff took an involuntary nonsuit as to said Laura and Ellen Griswold, with leave to move to set the same aside. The case thereupon continued as to the defenses of Reichmann and the city of St. Louis. Evidence was offered in their behalf; instructions given and refused at the conclusion of the case. The jury returned a verdict in favor of Reichmann; and also a verdict in favor of plaintiff for $5,000 against the city of St. Louis alone. Within four days of the return of said verdict, and the entry of judgment thereunder the city of St....