Proctor v. City of Poplar Bluff

• Decision Date: 11 March 1916
• Docket Number: No. 1450.,1450.
• Citation: 184 S.W. 123
• Parties: PROCTOR v. CITY OF POPLAR BLUFF.
• Court: Missouri Court of Appeals

184 S.W. 123

PROCTOR v. CITY OF POPLAR BLUFF.

No. 1450.

Springfield Court of Appeals. Missouri.

March 11, 1916.

Rehearing Denied April 3, 1916.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Action by Annie A. Proctor against the City of Poplar Bluff. Judgment for plaintiff, and defendant appeals. Affirmed.

N. C. Whaley, Sheppard & Sheppard, and Leslie C. Green, all of Poplar Bluff, for appellant. Abington & Phillips, of Poplar Bluff, for respondent.

FARRINGTON, J.

The plaintiff recovered judgment against the defendant (appellant) for damages sustained by her which she alleged were occasioned by reason of the negligence of the city in failing to keep a sidewalk in a reasonably safe condition for the use of pedestrians, in that it allowed, for many months prior to the date of plaintiff's injury, bricks and brickbats, some of which were entirely, and others of which were only partly, imbedded in the earth — some on their sides, some with their sharp edges up, and others with their pointed corners exposed and extending perpendicularly above the surface of the ground at distances varying in height from 1 to 4 inches — to remain immediately under a step-off in the street at and along that part of the street used by pedestrians as a walkway, that the same had been in that condition more than 12 months prior to the date of the injury, and that the servants and agents of the city knew or by the exercise of ordinary care could have known of the defective and dangerous condition of said walkway.

The evidence shows that plaintiff, who, with her daughter, left her home in the eastern part of Poplar Bluff (which is that part of the city lying east of Black river) after dark, was walking to a church on the west side of Black river. At Bartlett street a bridge connecting the two parts of the city spans the river, over which bridge pedestrians and vehicles traveled. In getting to this bridge plaintiff went west until she reached Front street, which is a street running parallel with the river and generally north and south. On the east side of Front street are storehouses, places of business, and residences. After traveling along Front street for some little distance, plaintiff came to what is known as Fee's saloon, which, we gather from the record, was kept in a frame building with a porch and roof extending out over the sidewalk line or where a sidewalk would be put down. This porch was built of boards, and was something like 8 or 10 feet wide. In traveling to this point, walking along the sidewalk line of Front street, plaintiff passed over cinder walks, board walks, and one granitoid walk, there being no uniformity in the kind of walks that had been constructed. It was shown that all the walks on the east side of Front street were placed there by the resident owners who put such walk as they wanted in front of their property, none of which sidewalks were put down by order of the city. When plaintiff was on the board walk or porch in front of Fee's saloon her daughter told her to be careful in stepping off. It was dark, according to her testimony and that of her daughter, so that they could not see just what they were stepping on. The testimony shows that the electric light at the intersection of Bartlett and Front streets, about half a block away to the south, was not burning; nor was a light burning at the intersection of Hazel and Front streets, about half a block north of where plaintiff was injured, so as to light the walkway. Plaintiff's testimony is that, when she stepped off the board walkway in front of Fee's saloon, the distance she had to step down was something like 12 to 15 inches, and that her foot, on stepping down, struck a hard substance — something that was not like the ground — causing her foot to turn which threw her down on the ground, and broke her thigh bone near the place where it joins the hip. There is no contention made that she was not injured severely, nor is there any dispute but what she is permanently injured and will be required the remainder of her lifetime to move about on crutches, and that as a result of the injury she suffered great pain and mental anguish. The evidence shows that in the sidewalk line just south of the board walk in front of Fee's saloon and extending some distance south was a space of ground which had been for many years used by pedestrians upon which to walk, and that some 12 or 16 years before the date of plaintiff's injury the owner of the land there had thrown in and along this sidewalk line bricks and brickbats, scattered indiscriminately, the same not being placed with any regularity, and over which had been scattered a covering of sand or gravel; that for a long time prior to plaintiff's injury the gravel or top covering had been worn off, so that the bricks and brickbats projected above the surface of the ground, some edgewise, some pointed up with their corners, and some on ends, varying, under the testimony, from 1 to 2½ inches in height from the level portion of the ground. The night plaintiff was injured was the first time she had been along this part of the walkway, and she did not know the condition that existed there as to these bricks and brickbats. The evidence shows that pedestrians used this portion of Front street for years as a walkway, and that the city had graded that part of the street used by vehicles, having established a grade for the street, and placed street lamps along the street, and put up signs at the street corners showing the names of the intersecting streets.

The case was submitted to the jury on instructions some of which will be referred to herein, and a verdict for $6,000 in favor of the plaintiff was returned. The appeal is by the city. The respondent raises some technical grounds on the form of the appeal, but we prefer to decide the case on the merits.

It is urged that the court erred in permitting the plaintiff to tell the jury what, in her opinion, she stepped on when she stepped down onto the portion of the walkway where she was injured. The evidence clearly shows by a number of witnesses that the brickbats were immediately under where she stepped off the porch or walkway in front of Fee's saloon. It is true she stated that it was dark, and that she could not see just what she did step on, and did not see the place again until several months later, when she again passed that way. Under the facts detailed, that the brickbats were there, as testified to by a number of witnesses, at the very place plaintiff testifies she stepped off the porch, her testimony, which is objected to, could not have been prejudicial. She did testify that what she stepped on was hard and not like the ground, and there was no showing of the presence at that place of any other obstacle or defect. The sense of touch is something that is and can be relied upon, and, in the absence of light, is probably as certain as...