O'Neill v. City of St. Louis

• Decision Date: 14 March 1922
• Docket Number: No. 22756.,22756.
• Parties: O'NEILL v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

239 S.W. 94

292 Mo. 656

O'NEILL v. CITY OF ST. LOUIS et al.

No. 22756.

Supreme Court of Missouri, Division No. 1.

March 14, 1922.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Action by Laura O'Neill against the City of St. Louis and Annie B. Tandy From judgment for defendants, plaintiff appeals. Affirmed.

Bert F. Fenn, of St. Louis, for appellant.

Henry S. Caulfield, George F. Raid, and Michael J. Hart, all of St. Louis, for respondents.

GRAVES, J.

There is but one issue in this case, and a short statement will suffice. The case is one for personal injuries suffered by Plaintiff by reason of falling upon an alleged defective sidewalk in front of the property of Annie E. Tandy, known as No. 1224 Bayard avenue. The fourth amended petition upon which the case was tried makes both Tandy and the city of St. Louis, defendants. The petition charges that there was an open water service box in the middle of the sidewalk in front of the Tandy property, the top of which was flush with the top of the sidewalk; that the top of such hoe was off, and had been for such length of time as to impute notice to the city; that by reason of the top being off of this box there was left a dangerous hole in the sidewalk some 5 inches square and 2½ to 3 inches deep; that, in walking over such walk on January 2, 1918, between 7 and 8 o'clock of the evening of that day, she stepped into said hole and was thrown to the sidewalk, and seriously injured. Other allegations of the petition were sufficient to make the petition state a good cause of action against the defendants. The answer of Tandy was a general denial, and that of the city a general denial and a plea of contributory negligence. Reply a general denial.

Upon a trial before court and jury, the plaintiff and her witnesses testified, and upon the conclusion of plaintiff's case the court sustained demurrers to the plaintiff's evidence as offered by the two defendants, and plaintiff was thereby forced to an involuntary nonsuit. Motion to set aside such nonsuit and reinstate the case was overruled, and judgment entered in favor of both defendants. From such judgment this appeal is taken. Our appellate jurisdiction is invoked by reason of the demand being for damages in the sum of $25,000.

There is liability, unless the contributory negligence of the plaintiff precludes her recovery, and this is the sole issue. Defendant city of St. Louis makes no other contention in the brief. We are not favored with a brief by defendant Tandy. It suffices to say, that plaintiff's witnesses made out a case, unless it be said that the evidence of plaintiff and her witnesses disclosed a case of contributory negligence as a matter of law. This defense must be made by the testimony of the plaintiff alone in a very large measure. But of this later. Such is the issue in the case.

I. Whilst the defendant Tandy has filed no brief, and the case stands simply submitted as to her, yet if the evidence for plaintiff disclosed contributory negligence, she is entitled to an affirmance of the judgment. This is true, although her answer contains no plea of contributory negligence. Where the plaintiff's evidence discloses contributory negligence as a matter of law, the defendant can avail himself of it, by demurrer to the evidence, although there is no plea of contributory negligence in the answer. Sissel v. Railroad, 214 Mo. loc. cit. 526, 527, 113 S. W. 1104, 15 Ann. Cas. 429.

So in this case, if the plaintiff's evidence discloses a case of contributory negligence, as a matter of law, defendant Tandy can avail herself of it on her demurrer, although her answer is a simple general denial.

II. The defendant city of St. Louis, as a supplemental abstract, has printed the full testimony upon cross-examination of the plaintiff. In reading it you will be impressed with the absolute fairness of the witness. She undertakes to hide no fact. The cross-examination is more in detail, but it does not contravene that given by her in chief.

By a police officer who lived near the Tandy place, it was shown that, during the 11 years of his residence there, he never saw a cover on the water service box in front of the Tandy place, until after the accident. He lives just 120 feet south of the Tandy place, but gave no notice to the city.

The plaintiff testified that she was going to church between 7:45 and 8 o'clock, when she fell; that she had seen this top off of the box upon several occasions prior to the accident, and knew that it was off, whenever she looked to see; that she traveled this walk two or three times per week in going to church, at about the same hours each time she went in the night; that had she been looking, there was sufficient light to see and she could have seen the hole in the walk made by the absence of this top of the water service box; that she had been going that route to church for several years; that she had cautioned her little son not to step into this hole at times; that on the night of the accident there was snow and ice on parts of the sidewalk and she had walked cautiously, until she reached the clear sidewalk in front of the Tandy place, when she hastened her pace, and stepped into the hole whilst she was not looking at the sidewalk; that she was alone at the time. This is a brief outline of the facts. Upon these facts did the court err in ruling that her contributory negligence precluded her recovery? We think not, and for reasons which we shall assign in the succeeding paragraph.

III. In discussing the matter of contributory negligence, in so far as that doctrine applies to travelers upon the sidewalks of a city are concerned, there are two lines of authorities in this as well as in other states. The line of demarcation between the two is clear and distinct. We have in one line of cases the fact that the traveler had previous knowledge of the defect in the sidewalk, and in the other line there is absent the fact of...