Ringeisen v. City of St. Louis

• Decision Date: 20 March 1951
• Docket Number: Nos. 27995,27996,s. 27995
• Citation: 238 S.W.2d 57
• Parties: RINGEISEN v. CITY OF ST. LOUIS et al.
• Court: Missouri Court of Appeals

Page 57

238 S.W.2d 57

RINGEISEN v. CITY OF ST. LOUIS et al.

Nos. 27995, 27996.

St. Louis Court of Appeals, Missouri.

March 20, 1951.

Rehearing Denied April 20, 1951.

James E. Crowe, City Counselor, Frank A. Neun, Asst. City Counselor, St. Louis, for appellant City of St. Louis.

Leahy & Leahy, Joseph L. Badaracco, St. Louis, for appellant Jays Real Estate Co.

Albright & McKeown, St. Louis, for respondent.

HOUSER, Commissioner.

This is a suit by a pedestrian against the City of St. Louis and a property owner, Jays Real Estate Company, a corporation, for damages for personal injuries sustained by plaintiff when he slipped into a hole in a defective wooden cellar door in the sidewalk in front of the property located at 2802 North Broadway in said city. Tried to a jury, plaintiff recovered a verdict and judgment against both defendants in the sum of $4500, from which both defendants have appealed to this court.

Each defendant assigns as error the overruling of its motion for a directed verdict at the close of the evidence; and the giving of plaintiff's main instruction as to each defendant. The real estate company further complains about the conduct of counsel in persistently attempting to elicit certain inadmissible evidence, and that the verdict is not supported by substantial evidence.

Plaintiff, a single man 58 years of age, night clerk and watchman at the Albers Hotel, 2100 North Broadway, in the City of St. Louis, Missouri, fell while on his way to Yount's Cafe, at 2804 North Broadway. The fall occurred on the sidewalk in front of 2802 North Broadway. In the fall he suffered a broken right leg.

The casualty occurred at 8:20 a. m. on the 27th day of January, 1949. According to the United States Weather Bureau report, a freezing drizzle began at 1:30 a m. that date, and continued until 8:30 a. m., when it changed to rain. At 8:00 a. m. the temperature was 31 degrees. During the entire day there was a total of .62 inches precipitation, and between 8:00 a. m. and 9:00 a. m. a total of one-tenth of an inch of precipitation fell.

Plaintiff's witness Frank Yount testified that at 4:30 a. m. there was ice on the street; that it was sleeting and raining and freezing as fast as it came down, and that this condition continued until the time of plaintiff's injury; that the weather was 'awful bad; snow, sleet and ice'; that it was 'pretty slick'; the ice covered the entire area in front of the stores; the sidewalk was covered with ice, although he could not say how thick the ice may have been. Plaintiff's attorney described the day as 'very bad; * * * the sidewalks at that time were heavily coated with ice.'

Plaintiff testified that it was rainy and icy, and 'had been all that morning'; that the rain was freezing; it was very cold; it was 'getting awful bad'; that the ice was 'getting thicker'; that he saw this icy condition, realized 'he couldn't walk' (to the restaurant from the hotel, some seven blocks south); that the sidewalk was 'all full of ice.' When asked about the thickness of the ice on the sidewalk, plaintiff answered, 'Well, it was so--I couldn't see, it was so rainy and icy, I couldn't see; it was pretty thick, and getting thicker all along, because it must have rained all morning,' and in answer to the inquiry 'Was it just a tiny fraction of an inch covering of ice or a large covering?' plaintiff answered, 'No, a large covering there. You couldn't see it. It was a large covering.'

Immediately south of Yount's restaurant there is an opening of three or four feet, an areaway, between the restaurant building and the 'saloon building' belonging to the defendant real estate company, which is the next building south of Yount's. In front of the 'saloon building' in the sidewalk, and as a part of the sidewalk, there is a wooden cellar door covering an opening in the sidewalk, oftentimes referred to in the evidence as a 'platform'. It was not a door, in the sense that it was fixed on hinges, but consisted of two by fours attached to two by four cross members, weighed about 50 or 60 pounds, and was 'dropped' in place. Its east end abutted the building line. The sidewalk in front of the several buildings mentioned in evidence on the east side of the 2800 block of North Broadway was constructed of brick.

Plaintiff took a streetcar, alighted at Broadway and St. Louis Avenue, and was making his way north on the east side of the 2800 block of Broadway at the time he sustained his injuries. He was on his way to get his breakfast. He had been taking breakfast at Yount's Cafe every morning for a year or more, and sometimes he took dinner there. When the weather permitted he walked, and after breakfast plaintiff would go to visit his 85 year old cousin at 22nd and Benton. Sometimes at night he would drop in at the tavern at 2800-2802 North Broadway for a bottle of beer.

Plaintiff knew there was a wooden cellar door in the sidewalk at 2802 North Broadway; he had seen it previously, but he did not know its condition.

As he made his way along on the icy sidewalk, he walked close to the building, where the platform was located, 'because it was so slippery on this wet sidewalk.' Plaintiff said he walked over the platform, close to the building, so that he could catch himself against the building; that it was 'sleety' and he couldn't walk over the sidewalk bricks. Plaintiff was wearing eyeglasses; he 'couldn't see so well because, you know, it was getting rainy and the storm right in front of me.' He had his 'head down, so it wouldn't come up, it was coming up toward me when I was going to the restaurant.' He testified that he did not see the particular cellar door before he walked over it. He was looking down; he couldn't see; it was icy and snowy. In answer to the question, 'Did you see that hole before you fell?' plaintiff answered, 'No, I couldn't, no sir.' He gave as his reason, 'Well, it was rainy and icy that morning.' He 'didn't recognize that hole there'; he 'couldn't notice that hole because it was covered with ice and rain.'

His description of the manner in which he fell was as follows: 'I went over there any my heel went right in that--my right foot went in that hole and I slipped and I fell, and then it (his ankle) broke--* * * I walked * * * over that platform, then when my foot--the heel, went right in that hole, then I turned over and I fell and it broke * * * (my foot went in) all the way up to the ankle. * * * Yes, when I turned that way my foot came out sideways, yes. My right ankle came up, yes. * * * The right ankle, that right foot there, that heel caught in there and--my foot, I mean, and the heel caught in there and turned over, and it broke and I fell on the ground on this side. I couldn't hold on account of that one arm, I had to fall down that side, and when I did that foot turned over and I heard that crack. It broke and I landed.'

At another point in the testimony plaintiff was asked, 'Did your foot go down into something at that point?' to which plaintiff responded, 'It went in there with the heel and forced it, that right ankle, and when I fell down it turned over, then after it turned over it slipped out.'

And again, 'The heel went in the hole, yes, it went in there when I went over it and I couldn't see until the heel went in it; it was icy and I couldn't see it.'

Plaintiff, asked whether he had occasion after he fell to look and see what caused his fall, answered 'Yes, I saw it was that very place there in that corner of that platform there.' Plaintiff testified, 'I know I looked and I fell right in that hole there, I fell on that cellar-door-hole, I know that. I looked and saw that and I laid right there until someone come to pick me up.'

When asked what he saw at the place where the hole was, plaintiff testified 'I saw it when I fell down, see? I saw that hole right there then, see? I know my heel was in that hole.'

On more particular inquiry concerning the hole, he testified that 'there was ice covered over it; it was an icy sheet over it; * * * I didn't see no footprint (at that particular spot); * * * (it was) glassy; it was keeping on raining and getting slicker all the time. * * * You couldn't see no footprints that day because it was solid with ice. * * *'

Concerning the thickness of the ice near the hole, plaintiff testified that the ice was '* * * getting around an inch thick. It was getting heavier all the time. * * * (It) completely covered the cellar door, yes, sir, it was really covered there and I couldn't see that hole there that morning until I had my heel, then I noticed it.'

Plaintiff was asked if he broke through the ice. His answer: 'It was getting so heavy--I didn't break it; I just only broke my foot, and then I laid there and the ice was getting heavier all along.' He further testified that the ice was 'pretty heavy there * * * it was so solid I didn't leave footprints, yes, that's right. It was so solid, I know that.'

Counsel for the city asked plaintiff 'And it was a solid, firm sheet?' to which plaintiff replied, 'A sheet; yes, sir.' Pursuing the matter further, counsel asked: 'And was it solid, nor only the sidewalk, the bricks, but also over the portion of the sidewalk that had the cellar door?' to which plaintiff replied, 'Oh, yes, yes, the cellar door and sidewalk, yes.' Counsel: 'Now, if it was such a solid coating of ice, how do you account for there being a hole at this particular spot?' Plaintiff: 'Well, I couldn't see, that was all covered with ice there, and then it was enough for me to get my heel in there, it wasn't that hard enough, you know, for me to get my heel in there, and I turned over, my foot turned over, and then I rolled, and that is when I lay there, * * *.'

At another point in the testimony plaintiff testified that the hole was 'about four inches wide on each side' and again '* * * four inches by four inches, in other words, yes.'

When asked on cross-examination if he had not fallen because of a depression in the...