Rose v. Gunn Fruit Co.

• Decision Date: 04 February 1919
• Docket Number: No. 15323.,15323.
• Parties: ROSE v. GUNN FRUIT CO. et al.
• Court: Missouri Court of Appeals

211 S.W. 85

201 Mo. App. 262

ROSE v. GUNN FRUIT CO. et al.

No. 15323.

St. Louis Court of Appeals. Missouri.

February 4, 1919.

Rehearing Denied April 24, 1919.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

Action by Marry Rose against Louise Biddle and Katherine Biddle Barrett, as owners, and the Gunn Fruit Company, as lessees, of premises, for personal injuries sustained by falling into an open cellarway in the sidewalk. Verdict and judgment for plaintiff against the defendant owners, and they appeal. Reversed, and cause remanded.

Geo. W. Lubke and Geo. W. Lubke, Jr., both of St. Louis, for appellants.

Frank A. Habig, of St. Louis, for respondent.

ALLEN, J.

This is an action to recover damages for personal injuries sustained by plaintiff, on December 17, 1912, by reason of falling into an opening or cellarway in the sidewalk on the north side of Carr street, a public street in the city of St. Louis, in front of and adjoining a building and premises owned by the defendants Louise Biddle and Katherine Biddle Barrett on the northwest corner of Third and Carr streets, and known as 1101-1105 Carr street. The suit was instituted against Louise Biddle and Katherine Biddle Barrett as owners, and against the Gunn Fruit Company, a corporation, as the lessee, of the premises. During the progress of the trial it appeared that the Gunn Fruit Company, having, in 1915, sold its business to another corporation, was no longer in existence. At the close of all the evidence in the case, plaintiff dismissed the action as to said lessee. There was a verdict and judgment for plaintiff against the defendant owners, who have brought the case here by appeal.

The petition counts upon negligence on the Part of the appellants in failing to provide said opening with a cover or grating of the character required by an ordinance of the city of St. Louis, being section 1292 of article 12 of the Revised Code of the City of St. Louis (1912). This ordinance, which appellants are charged to have violated, provides as follows:

"Any opening in a paved sidewalk leading into an area or vault beneath or into a cellar shall be fitted with a wood or iron cover or grating set in flagging even with the surface of the sidewalk and said cover or grating shall have no lock, hinge, nor any fastening projecting above the sidewalk, and shall be secured in such manner as to prevent accident to any one passing over it. Any person who shall fail to comply with the provisions of this section, or who shall leave an opening in a sidewalk uncovered shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than ten dollars nor more than one hundred dollars."

The evidence discloses that the appellants had owned the building and premises involved for a great many years prior to plaintiff's injury. In 1911 they leased the property to the Gunn Fruit Company and one Robertson and one Sommer, who were interested in that corporation. At the time of plaintiff's injury the Gunn Fruit Company was occupying the premises under this lease, though Robertson and Sommer had assigned their interest in the leasehold to certain persons who had acquired their interest in the fruit company.

On the evening of December 17, 1912, plaintiff was on her way to her home from her place of employment nearby, and in passing over the sidewalk in front of this building, in a westerly direction, fell into an opening or cellarway in the north side of the walk adjacent to the building. This opening in the sidewalk, it is said, was about 4½ feet in length, from north to south, and about 4 feet in width, surrounded by stone flagging or coping, and afforded access to the cellar or basement of the building by means of steps leading from the sidewalk. One witness, however, said that the opening extended only about 3 feet from the building, leaving about 3 feet of the sidewalk to the south thereof. The testimony shows that a porch extended from the building over this sidewalk, and at the time of plaintiff's injury the sidewalk was to some extent obstructed by Christmas trees placed along the south side thereof, and also, it is said, along the building at the north edge thereof. There is testimony for plaintiff tending to show that these trees obstructed a large portion of the sidewalk toward the curb, leaving a rather narrow passageway on the north side of the walk; but testimony for defendants tends to show that the trees at the outer edge of the sidewalk were, for the most part, in the street, and obstructed the sidewalk but little.

Plaintiff testified that it was 5:30 p. m. when she fell into the opening, and that it was then "very dark" at this place, so dark that she could not discern that the opening existed, and that there was then no cover over this hole. From her testimony it appears that, as she stepped into the opening, she fell with her feet, or one foot, upon the steps leading into the basement, and that her body struck the west wall of the opening. The evidence shows that her injuries developed to be quite serious. She testified that she went to work on the following morning, but was unable to work all day because of her injuries, and that as she passed along this sidewalk she observed that above this opening there were then "boards over the sidewalk running up against the building."

A Mrs. Wishmeyer, who was with plaintiff at the time of her injury—i. e., was following her along the portion of this sidewalk unobstructed by trees—testified as to plaintiff's fall, that she saw no covering of any kind over this opening at the time, and that it was very dark at this place.

One Hilliard, who was secretary of the Gunn Fruit Company at the time of plaintiff's injury, was called as a witness for plaintiff. He identified the lease mentioned above, and it was introduced in evidence. He testified that this opening "had a cover, over it, a kind of gate, made of slats, that would rest against the outside of the opening and lean up against the wall, covering the entire opening"; that it was removable, and that there was no wooden or iron cover set in flagging even with the surface of the sidewalk; that the opening was protected solely by these slats fastened together, which leaned against the wall of the building, leaving open spaces at both sides thereof; and that, when the cellarway was in use, this strip of slats was picked up and set to one side against the building. He further testified that at the time of the execution of the lease, supra, this hole and covering were in this condition; that he had known the premises for many years, and that the condition then existing had existed for at least 6 or 7 years; and his testimony on cross-examination manes it appear that this condition had existed for 14 years. He was asked by the court whether this covering of slats was flush with the sidewalk when in place, so that one could walk across it, and he said:

"No, no, Judge; * * * the covering leaned against the wall like that (illustrating); * * * of course, these sides were open."

Being recalled as a witness for defendants, he testified, on cross-examination of plaintiff's counsel, that this strip of slats was light, and could be very readily picked up or moved about.

The ordinance pleaded in the petition was duly introduced in evidence by plaintiff.

One Bosche, who was president of the Gunn Fruit Company at the time of plaintiff's injury, was called as a witness for defendants. He fully described the covering provided by these appellants for this opening, and which the lessees had continued to use, as consisting of a number of slats or boards, each about 3 inches in width, with spaces between them, and which were nailed to "about three strips running the other way." He testified that when the covering was in place it did not lay flat over the opening, but leaned against the wall of the building; the outer end thereof resting against the coping at the south side of the opening, which extended about an inch above the sidewalk, and which thus prevented the strip of slats from slipping and falling.

This witness testified that he saw this I covering in place, above the opening, on the evening of plaintiff's injury, prior to the time when she is said to have fallen into the opening; that he observed this as he left the building about 5 o'clock, or a few ; minutes before or after that time; and that he heard of plaintiff's injury on the following day. On cross-examination he testified that this strip of slats was quite light, and I could be "picked up" very easily and moved about; that it "had been used for years," and "had got very light during that time," the wood having become "well seasoned." His further testimony in this connection is as follows:

"Q. Now, you saw the hole at 5 o'clock? A. Yes, sir. Q. Five minutes after or five minutes before 5? A. Yes, sir. Q. Are you sure of that time—that is, are you— A. Well, I am sure within five minutes. Q. So that between 5 o'clock and 5:30 the covering might have been removed by some one else? A. It could have been done. Q. That is, passing along there, some one might have pushed it out of the way? A. It is possible. Q. Between 5 and 5:30 o'clock?"

Upon objection to this, as calling for a conclusion, the court merely said, "It is self-evident;" defendants saving no exception.

One Saporita, an employé of the Gunn Fruit Company at the time of plaintiff's injury, testified to the effect that he put this strip of slats in its accustomed position, above the opening, on the evening in question, prior to the time at which Plaintiff is said to have been injured.

The other testimony in the case is not of consequence on this appeal.

I. It is argued for appellants that the trial court erred in refusing to peremptorily direct a verdict for them; but we think that this insistence is without merit. The case, in this court, fell by assignment to our Presiding Judge, who has written an opinion therein,...