Reedy v. St. Louis Brewing Ass'n.
| Decision Date | 29 March 1901 |
| Citation | 161 Mo. 523,61 S.W. 859 |
| Parties | REEDY v. ST. LOUIS BREWING ASS'N et al. |
| Court | Missouri Supreme Court |
3. Plaintiff was injured by falling on an icy sidewalk. The ice formed from water escaping from a leaking water pipe on the roof of an abutting building, early in the evening the night before the accident. The abutting property owner had covered the ice with malt sprouts to render it less dangerous, which remained on the ice all day until about 5 o'clock in the evening, when boys swept them off to skate on the ice. Plaintiff fell on the ice about two hours thereafter, and in an action against the city and the abutting owner for the injuries thus received, in which a change of venue had been taken, the jurors not being drawn from the same vicinage as the place of the accident, the jury were instructed that the defendant city was liable if it knew "by its proper officers having charge of and keeping its streets in repair, or by the exercise of ordinary care would have known," of the defective condition of the sidewalk, in time to have caused the ice to be removed before plaintiff was injured. Held, that such instruction was erroneous and prejudicial to defendant city, in that it left a great deal of inference to be drawn from the common knowledge which the jurors derived from their everyday experience as to the duties of proper city officers in regard to ascertaining within the time the condition of the walk, there being no evidence as to such duties.
4. In an action against a city for injuries received by falling on an icy sidewalk, where the evidence did not show that there was any other ice or snow in the city, it was error to charge on the theory that the city would be liable only in case the snow or ice was suffered to be piled up so as to create a veritable obstruction.
Appeal from circuit court, Gasconade county; Rudolph Hirzel, Judge.
Action by John Reedy against the St. Louis Brewing Association and another. From a judgment in favor of the plaintiff, defendants appeal. Reversed.
Kehr & Tittman, B. Schnurmacher, Carl Unger, and Alex. Nicholson, for appellants. A. R. Taylor and B. L. Mathews, for respondent.
Plaintiff slipped and fell on ice on a sidewalk in one of the public streets of the defendant city, and suffered serious injuries. This suit is to recover damages for those injuries. The defendants were sued as joint tort feasors. The joint injury is alleged to consist in neglecting to remove the ice from the sidewalk within a reasonable time after its existence was known, or would have been known, if reasonable care had been observed. The defendant the St. Louis Brewing Association is charged in the petition to have caused the ice to form by suffering water from its abutting premises to flow upon the sidewalk in freezing weather. The particular fact of negligence alleged against the brewing association is that the gutter on that defendant's building was in "defective condition"; "that, owing to the insufficiency of the spouts and gutters on said building, the water from the roof of said building overflowed upon the sidewalk of said street, where it was frozen, and became a dangerous obstruction to passage over said sidewalk. The defendants answered severally, denying the allegations of negligence, and pleaded that plaintiff was himself guilty of negligence that contributed to his injuries. It appeared from the evidence that the brewing association owned buildings at the southeast corner of Eighteenth street and Cass avenue, running south to a paved alley 20 feet wide. Next south of the alley is its storage house, which is about 40 feet high. The buildings north and south of the alley are connected by a bridge. On the building east of the storage house there was a water tank supplied by a pipe running across the bridge from north to south. It was a 2 or 2½ inch pipe, packed in a wooden box, extending over the roof of the storage house to the tank. This was a flat gravel roof 40 by 42 feet, with a copper gutter around it 4 inches wide at the bottom and 8 at the top, with a 4½-inch down spout of galvanized iron. As to the condition of the gutter, the testimony was conflicting. Two of plaintiff's witnesses said it sagged in the center, and one said it bent outward. Defendants' witnesses testified that it was in perfect condition, of best material and workmanship, set on brick the entire length of the wall, and could not sag; that the pitch of the roof was 18 inches from east to west, and the gutter and down spouts sufficient to carry off the rainwater that would accumulate on a roof of that size. Plaintiff lived in the same block just south of the brewery, and visited it almost every day. On the evening of November 30, 1896, between 7 and 7:30 o'clock, plaintiff went to the brewery, and informed the night watchman the water was running off the roof upon the sidewalk. The two went out together, and saw water running off the roof of the storage house. The night watchman went upon the roof, and there found that a leak had occurred in an elbow in the pipe leading to the tank. He went across the bridge to the mill house, and turned off the water. Then got a broom and swept the water off the sidewalk as well as he could. The superintendent of the brewery, who lived near, was notified, and he caused two men to spread malt sprouts on the sidewalk where the water had fallen, with a view to prevent the ice becoming slippery, as it was then cold and freezing. There was no rain or snow. The weather was clear, dry, and cold. The water that had thus fallen from the roof of the storage house, or so much of it as had not been swept off, became frozen, and covered the sidewalk from the building line to the curb with a coating of ice. The ice was thicker near the building line and the curb than in the center. The location is a thickly-inhabited part of the city, and a great many people (the witnesses said thousands) passed over the place the day following, which was December 1st. About 5:30 p. m. that day a lot of boys were seen sweeping the malt sprouts from the ice to convert it into a skating place, and used it for that sport. About 7 o'clock that evening the plaintiff, while walking in the center of the sidewalk on this ice, slipped and fell, receiving serious injuries.
In its instructions, the court, after presenting in other respects the plaintiff's hypothesis of the case, including the formation of ice on the sidewalk, rough and uneven, so as to be a dangerous obstruction to persons passing, directed the jury to find for the plaintiff against both defendants if they found from the evidence that "the water was caused to so fall upon said sidewalk because the gutter of said building was out of repair and insufficient to carry the water from the roof of said building," "and if the brewing association did not use ordinary care in maintaining the gutters in that condition, and in suffering the ice to so remain on the sidewalk, and if the city knew, or by the use of ordinary care would have known, of the condition in time to remove it." Other instructions, upon like hypotheses (leaving out that of the city's duty), directed a verdict against the brewing association alone, to all of which exceptions were taken. It is unnecessary to here copy the instructions given for defendants, but it is sufficient to say that, in general, they directed a verdict for defendants, and each of them, unless the acts of negligence propounded in plaintiff's instructions were established by the proof, or if the plaintiff was himself negligent. For the city the instructions given carried the theory that the mere formation of ice or accumulation of snow on the sidewalk did not constitute a condition for which the city would be liable, but that the ice or snow would have to be so rough and uneven as to constitute an obstruction dangerous to persons using the sidewalk, while exercising ordinary care. Each defendant asked an instruction in the nature of a nonsuit, and, among others, instructions to the effect that ice which was smooth and slippery was not an obstruction, but, to become such, it must be rough and uneven in its surface. Those instructions were refused, and their refusal assigned for error. There was a verdict for $4,500 for plaintiff against both defendants, from which they appeal.
1. The first proposition advanced by the defendant brewing association is that the petition makes no case of joint liability of the two defendants, but that as to the one the charge is negligence in suffering water to be discharged on the sidewalk in freezing weather, and as to the other allowing an obstruction to remain in the street for an unnecessary period after it was known, or would have been known by the use of proper care. It is argued upon the authority of Norton v. City of St. Louis, 97 Mo. 537, 11 S. W. 242; City of St. Louis v. Connecticut Mut. Life Ins. Co., 107 Mo. 92, 17 S....
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