Sanders v. Carl Berry Oil Co.

• Decision Date: 16 July 1962
• Docket Number: No. 2,No. 48798,48798,2
• Parties: Elgin E. SANDERS, Appellant, v. CARL BERRY OIL COMPANY, Respondent
• Court: Missouri Supreme Court

Page 769

359 S.W.2d 769

Elgin E. SANDERS, Appellant, v. CARL BERRY OIL COMPANY, Respondent.

No. 48798.

Supreme Court of Missouri, Division No. 2.

July 16, 1962.

Motion for Rehearing or for Transfer to Court en Banc Denied

Sept. 10, 1962.

Robert H. Miller, Gene C. Morris, Reed O. Gentry and Rogers, Field & Gentry, Kansas City, for appellant.

Jack G. Beamer and McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, for respondent.

STOCKARD, Commissioner.

Plaintiff, Elgin E. Sanders, has appealed from an adverse judgment entered pursuant to a jury verdict in his suit for $25,000 for personal injuries resulting from a fall.

On December 15, 1958, William Ray Spurgeon, an employee of defendant, Carl Berry Oil Company, delivered 1,500 gallons of fuel oil to the Fredric Hotel. In the process of pumping the oil into a pipe recessed behind an iron door of the hotel building about two gallons of the oil was spilled on the surface of a public alley which was located on the west side of the hotel. At 3:00 o'clock the following morning the plaintiff, a taxi driver who lived at the hotel, started to walk to his cab which was parked on a nearby parking lot. Instead of walking on an available lighted sidewalk, which route he had used about four hours earlier in walking from his cab to the hotel, plaintiff took a shorter route through the dark and unlighted alley, stepped on what he said was the fuel oil spilled by Spurgeon, and fell and was injured. Defendant introduced evidence to the effect that there was ice and snow on the surface of the alley, and that after the oil was spilled Spurgeon wiped all of it up with rags. The inference from the evidence is that there were no sidewalks in the alley for pedestrian use.

At the request of the defendant the trial court gave an instruction on contributory negligence, the terms of which will subsequently be discussed. Plaintiff contends that the trial court erred in giving any instruction on contributory negligence because an alley is a public street and he had a right to presume that the city had complied with its duty to maintain the alley in a reasonably safe condition for travel, and for that reason he could not, as a matter of law, be found guilty of contributory negligence. Defendant contends, on the other hand, that by voluntarily entering the dark and unlighted alley when a safe and lighted way was available, plaintiff was guilty of contributorly negligence as a matter of law. We disagree with both contentions.

Bearing upon both of these contentions is the issue of a presumption that a public way is safe. In suits against a municipality where the issue for determination was whether a person traveling on a public way in the nighttime was guilty of contributory negligence as a matter of law when injured by reason of falling in a hole, ditch or other defect in the public way, the courts have said that a person is entitled to presume that a street or sidewalk is safe for travel by night as well as by day. Conner v. City of Nevada, 188 Mo. 148, 86 S.W. 256; Dinsmore v. City of St. Louis, 192 Mo. 255, 91 S.W. 95; Kirk v. Kansas City, Mo.App., 129 S.W.2d 1058; Vick v. City of De Soto, Mo.App., 86 S.W.2d 367; Clark v. City of Atlantic Beach, Fla.App., 124 So.2d 305; Vol. 19, Municipal Corporations, McQuillin, 3rd ed. Sec. 54.123. This presumption is based on the theory that 'the city had done its duty in keeping its street in a reasonably safe condition.' Conner v. City of Nevada, supra, 86 S.W. at p. 260. See also Ryan v. Kansas City, 232 Mo. 471, 134 S.W. 566, 569. However, this is not a suit against the city, and the evidence does not affirmatively show that the oil had been on the surface of the alley for a sufficient period of time to charge the city with notice and to afford it an opportunity to correct the situation. It appears somewhat incongruous for plaintiff to argue that he had the right to presume that the city had performed a duty which, under the evidence in this case, apparently did not exist. Notwithstanding this possible situation which differentiates this case from those relied on by plaintiff, what we consider to be the correct rule, and which is recognized as the 'prevailing rule' in Vol. 19, Municipal Corporations, McQuillin, 3rd ed., Sec. 54.123, was stated by Judge Lamm in a separate concurring opinion to Ryan v. Kansas City, 232 Mo. 471, 134 S.W. 566, 570-571. It was there said that while a footman in a proper case 'may presume a city has done its duty in keeping its sidewalks in a reasonably safe condition for travel by pedestrians, by night as well as by day, yet that presumption runs with a condition. It goes hand in hand with another vital proposition, viz., that a footman must use ordinary, that is, due, care to avoid injuring himself. Such care is the care of an ordinary person under like circumstances. Such care is broad enough to create the duty to look and see where one is going, as well as the duty to avoid danger when actually discovered. That does not mean a pedestrian is an inspector of sidewalks, or cannot take a step without looking down to see that his feet do not carry him into a pit, * * *. He need not be watching at every footfall for defects, but he should act like a prudent person, who makes reasonable use of his eyes while walking. He cannot shut his eyes, or blindfold himself, or walk backward, or not look about him at all, or, under the assumption that no defects exist walk heedlessly into obvious ones.' It is obvious that plaintiff is in error when he contends that as a matter of law he could not be found to be negligent.

We conclude that under the facts and attending circumstances a jury could reasonably find that when plaintiff entered the alley in total darkness at three o'clock in the morning when a safe and lighted sidewalk was available for his use he did not exercise the care of an ordinary reasonable and prudent person. See Kirk v. Kansas City, Mo.App., 129 S.W.2d 1058; Magennis v. City of Pittsburgh, 352 Pa. 147, 42 A.2d 449; Carroll v. New Orleans Ry. & Light Co., 132 La. 683, 61 So. 752; Roberts v. City of Fairborn, 102 Ohio App. 91, 141 N.E.2d 297; 63 C.J.S. Municipal Corporations Sec. 854. However, reasonable men, in the honest exercise of a fair impartial judgment would not necessarily reach the above conclusion, and in such event a person is not to be held guilty of contributory negligence as a matter of law. Brandt v. Thompson, Mo.,...