Shopbell v. City of St. Joseph

• Citation: 49 S.W.2d 301,226 Mo.App. 1170
• Parties: EFFIE SHOPBELL, RESPONDENT, v. CITY OF ST. JOSEPH, APPELLANT
• Decision Date: 02 May 1932
• Court: Court of Appeals of Kansas

49 S.W.2d 301

226 Mo.App. 1170

EFFIE SHOPBELL, RESPONDENT, v. CITY OF ST. JOSEPH, APPELLANT

Court of Appeals of Missouri, Kansas City

May 2, 1932

Appeal from Circuit Court of Buchanan County.--Hon. L. A. Vories Judge.

AFFIRMED.

Judgment affirmed.

Shultz & Owen for respondent.

Miles Elliott, Herman Hess and Morte H. Craig for appellant.

OPINION

ARNOLD, J.

This is an action in damages for personal injury. Plaintiff is the wife of William Shopbell, and they reside in the defendant city of St. Joseph in Buchanan county, Missouri.

The petition is formal and alleges defendant is a municipal corporation and a city of the first class; that Faraon Street and Diagonal Avenue and the intersection thereof are public thoroughfares of said city; that due notice in writing, verified by affidavit, setting forth the place where and the time when the injuries were received by plaintiff, the character and circumstances of said injuries, and that she (plaintiff) would claim damages therefor of said city, were filed by plaintiff, and further the petition alleges--"that at all times herein, there was a defective and dangerous sidewalk, by reason of a broken and defective condition of the pavement in said walk, said defect being located in the concrete sidewalk on the south side of Faraon Street and seventeen inches east of the curb in said sidewalk, said curb being located at the intersection of said Faraon Street and Diagonal Avenue; said defect also being located directly south of an iron lamp post, said post being situated in the sidewalk pavement just west of the west end of a brick building, designed as No. 1104 Frederick Avenue and occupied by the Butler Motor Company; that said defect was caused by a portion of said concrete in said sidewalk, at said point, being broken and removed, thereby leaving an offset of about ten inches in said sidewalk; that by reason of said condition of said sidewalk, same was not reasonably safe for pedestrians traveling over same."

The petition further states the defendant knew, or by the exercise of ordinary care could have known of said defect and dangerous condition of said sidewalk and sidewalk space, in time, by the exercise of ordinary care, to have repaired the same, and negligently failed to do so; that on September 29, 1930, while in the exercise of ordinary care, and while walking over said broken sidewalk at said point, by reason of said defendant, plaintiff was caused to fall, thereby receiving injuries enumerated in the petition. Judgment is sought in the sum of $ 15,000.

Defendant unsuccessfully demurred to the petition upon the ground that it does not state facts sufficient to constitute a cause of action against defendant. After demurrer overruled, defendant filed answer admitting defendant is a municipal corporation, organized under the laws of the State of Missouri, and a city of the first class; that, at the time mentioned in the petition, Faraon Street and Diagonal Avenue were public thoroughfares in said city, and denying all other allegations of the petition. For further answer, defendant pleads contributory negligence of plaintiff, "in failing to use ordinary care to look and watch where she was walking and traveling and in failing to use her eyes and vision to observe where she was walking and in walking along and over the street and sidewalk mentioned in evidence without looking at or observing the same."

The cause was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $ 500. A motion for new trial was overruled and defendant has appealed.

Four assignments of error are urged, (1) that the court erred in refusing to sustain defendant's peremptory instruction in the nature of a demurrer at the close of plaintiff's case; (2) in refusing a similar instruction at the close of all the evidence; (3) in submitting the case to the jury, and (4) in overruling defendant's motion for a new trial, on the ground the court should have given defendant's peremptory instructions. These charges of error, being closely related, may properly be considered together.

It is first urged that the maintenance of a stetp in a sidewalk for ascending or descending from one level to another does not constitute negligence on the part of a city. Cases in foreign jurisdictions are cited in support of this argument. Plaintiff declares this rule, if correct, has no application to a defect caused by a portion of the concrete in the walk being torn up, thereby creating a depression and step-off of about eight inches; and that the rule invoked by defendant is not the rule in this State.

The testimony shows that on September 29, 1930, at about 7:30 P. M., plaintiff and her husband, together with a young lady, were walking west on the sidewalk on the south side of Faraon Street, and when they reached a point where Faraon Street intersects Diagonal Avenue, plaintiff was injured by stepping on the broken end the concrete steps forming the sidewalk. There was introduced in evidence plaintiff's Exhibit A, which is a photograph of the sidewalk and curbing at the point where the accident is alleged to have occurred. This photograph is identified and all the testimony is to the effect that it correctly represents the situation at the time of the accident. From this exhibit and the testimony, we glean the following:

In the spring of 1930, in March, April or May, the defendant city, through a contractor, built a circular concrete curb at the intersection of Faraon Street with Diagonal Avenue. The curb is higher at the point where it starts to curve to the northeast and is there several inches lower than the surface of the sidewalk. The height from the pavement decreases as the curb proceeds to the north and east on the curve. Between the curb and the end of the sidewalk, there is a space some fifteen to eighteen inches in width which was filled with dirt or other substance to the top of the curb, but lacked some four and a half to five inches of being as high as the upper surface of the sidewalk slab. The end of the sidewalk was uneven and somewhat irregular, at the point where plaintiff is alleged to have fallen.

Testimony in plaintiff's behalf is to the effect that she stepped on the edge of this uneven concrete slab and fell. The sidewalk at that point is in two parallel slabs, one to the north and the other to the south, the offending slab being the one to the south.

Defendant points out that at the point in question the general surface of the sidewalk is some four or five inches higher than the top of the curb and the curb does not exceed four and a half inches above the surface of the street; that from the end of the sidewalk, the curb was a distance of fifteen to eighteen inches, which would be about the width of a tread in any easily ascending stairway; that while this space between the end of the sidewalk and the curb was not concrete, it was filled with dirt about level with the top of the curb. From this condition, defendant argues it is not liable for a "mere step in the sidewalk" rendered necessary by the grade or elevation of the sidewalk and street; that, at the point in question, defendant had either to extend the end of the sidewalk to the outer edge of the curb and thus make only one step down to the pavement, some eight and one-half to nine and one-half inches, or two steps of about four and one-half inches each, of which the curb was one (which was the case), or else make a slope from the surface of the sidewalk down to the level of the street. From this, defendant makes the deduction that the existence of a step in a sidewalk due to, or necessitated by, differences in elevation, does not...