Rice v. White

• Decision Date: 18 March 1922
• Docket Number: No. 22514.,22514.
• Parties: RICE v. WHITE et al.
• Court: Missouri Supreme Court

239 S.W. 141

RICE v. WHITE et al.

No. 22514.

Supreme Court of Missouri, Division No. 2.

March 18, 1922.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by Lula 3. Rice against William V. White and another., Judgment for defendants, and plaintiff brings error. Affirmed.

This is an action for damages. Plaintiff claims to have been injured while walking along the sidewalk on one of the streets in the city of Joplin. Codefendant, White, was the owner of a three-story building abutting on said sidewalk, from which a window pane is alleged to have fallen, striking plaintiff.

The petition charged that said window pane fell because insecurely fastened, and loose. At the close of plaintiff's evidence, she was coerced into taking an involuntary nonsuit with leave. Her motion to set aside the nonsuit and to grant her a new trial was denied. She first took steps to appeal, but abandoned that procedure, and seasonably sued out a writ of error in the Springfield Court of Appeals. When the record was lodged there, it was discovered that the amount in controversy exceeded the jurisdiction of that court, whereupon the cause was transferred to this court. The petition filed in said cause, omitting caption and signatures, is as follows:

"Plaintiff states that on the ____ day of February, 1919, and for a long time prior thereto, the defendant, the city of Joplin, was and now is a municipal corporation, organized and existing under the laws of the state of Missouri, and as such municipal corporation was and now is a city of the second class, having all powers and subject to all the responsibilities conferred and imposed by law upon cities of that class, including a right to sue and be sued, to plead and be impleaded in all actions of law; that as such city it became its duty to keep all public buildings in said city in a safe and secure condition, but that said defendant, the city of Joplin, on the day aforesaid, by its officers, agents, and building inspector, negligently and carelessly failed and neglected to do so, as hereinafter stated.

Plaintiff further states that the defendant, William V. White, is now, and was at all times hereinafter mentioned, the owner of and in possession of a certain lot and a three-story brick business building, fronting and abutting the east side of Main street, between Sixth and Seventh streets, being No. 627 Main street, in said city of Joplin, in Jasper county, state of Missouri.

"Plaintiff further says that said Main street, in the city of Joplin, was at the times hereinafter stated, and for many years previous thereto had been, a public street and highway, and the sidewalk on said street one much traveled by the public at all hours of the day and night by people on foot.

"Plaintiff further says that, on the third story in said building at No. 627 Main street, as aforesaid, and in the front of, adjacent to, and facing Main street, were a number of large windows, containing large, heavy glass panes;. that it was the duty of defendant, William V. White, to exercise a high degree of care to keep said large panes of glass securely, properly, and permanently fastened in the frames thereof, so as not to permit them to fall out and down upon said sidewalk and street, and to keep them in such a reasonable safe condition :hat pedestrians on the public sidewalks of said Main street should not sustain injury while lawfully passing along and in front of said building, but that the defendant, William V. White, wholly neglected his duty in that behalf, and, on the ____ day of February, 1917, and for a long time prior thereto, did wrongfully, negligently, carelessly, and regardlessly permit said large panes of glass to become and remain insecure, loosened, and in a dangerous condition, and liable to fall from said frames down and upon pedestrians traveling over and along said sidewalk abutting said building on said Main street as aforesaid.

"Plaintiff further says that on the said ____ day of February, 1917, while lawfully walking along and over said public sidewalk and street as aforesaid, a place where she had a right to be, and while exercising ordinary care and caution for her own safety, one of said large, heavy panes of glass from said third-story window, by reason of the carelessness and negligence of the defendants as aforesaid, by reason of The large panes of glass being loose, insecure, and unfastened and in dangerous condition as aforesaid, and by reason of the defendant's neglect in allowing and permitting said large panes of glass to be and remain in said dangerous condition, fell out, down, upon, and against plaintiff, striking plaintiff's head with great force and weight, stunning and knocking plaintiff down to the sidewalk, from which shock and injury plaintiff suffered congestion of the brain, paralysis of the limbs, nervous prostration, derangement of the nervous system and spine, blindness, and total disability since said ____ day of February, 1917.

"Plaintiff further says that the defendant William V. White and the defendant the city of Joplin, by its officers, agents, and building inspector, knew, or by the exercise of that high degree of care required in such cases could have known, of the insecure, unfastened, loosened, and dangerous condition of said large panes of glass, and that the same were liable at any time to fall down, and from the said third story windows of said building as aforesaid, in time to have remedied the same before said injury to plaintiff.

"Plaintiff further says that, as the direct consequence of her said injury as aforesaid, she has suffered and will suffer great pain of body and mind; that since said injury she has been confined to her bed and home, and is still unable from said injury to her body and mind to help or wait upon herself; that her health is greatly impaired; that her said injuries are permanent and lasting; that she will in the future continue to suffer bodily and mental pain, all to her damage in the sum of $10,000. "Wherefore plaintiff prays judgment for said sum of $10,000 and costs of this suit."

The answer of codefendant White was a general denial. Defendant city of Joplin answered by a general denial and further alleged that there were other parties who should have been joined as defendants.

Plaintiff, testifying in her own behalf, said in substance: That about half past 5 on the evening of February 5, 1917, she was walking along the street when a "window light" fell, striking her on the top of the head and knocking her down; that the glass fell from a three-story building on Main street between Sixth and Seventh streets; that it fell fiat on her head; that she was stunned at the time; that she went to her home, where shortly thereafter she collapsed, and had suffered since from the injuries received.

Plaintiff said that she did not observe the building that day, but that about a month before she was going to Carthage one morning "and noticed a light had fell out of a window, either second or third story; it was laying all over the sidewalk."

On cross-examination, plaintiff said the pane of glass did not cut her head, but raised a bump, and that she thought it was the whole glass that hit her, and that it did not fall in two parts; that it did not strike her daughter-in-law, who was walking with her, because plaintiff was about a foot taller.

Norman A. Cox, a lawyer of Joplin, testified for plaintiff in substance: That he was in the vicinity of Main street between Sixth and Seventh about two years before the trial when a pane of glass fell out of a window; that it was his impression that it was Mr. White's building; that it was one of the two buildings "there between Sixth and Seventh streets on Main street"; that he heard the noise of the glass, and then looked and saw the glass falling, and saw an opening where a curtain was blowing out from the place from which the pane had fallen; that he saw one piece of glass hit the side of the building and break into a thousand pieces.

On cross-examination he said:

"I heard the noise of glass breaking and I immediately looked around to the direction it came from, and saw a sash curtain blowing out of the window in the second story of this building, and one piece of glass hit against the building before it reached the sidewalk, and smashed into very small fragments. My eye followed the glass down."

Plaintiff read in evidence the deposition of codefendant, William V. White, to the effect that he owned the property in February, 1917, located on the east side of Main street in Joplin, known as No. 627; that it was a three-story brick; that he did not know what windows were in the building, but thought there were four windows in front on each story, and that said windows were the average size; that one Greenberg occupied the lower story in February, 1917; that "Miss Hart had the second and third stories of that building leased at the time. Maybe four or five months, I don't recollect how long she had them. My wife leased the building. She always leases it, and gets the rent for the building."

Witness never heard of any one getting hurt there; that he had not had any repair work...