Sloan v. American Press

• Decision Date: 31 March 1931
• Docket Number: 28492
• Parties: Matthew Pearl Sloan, Appellant, v. The American Press, I. M. Levitt and Ida Levitt
• Court: Missouri Supreme Court

37 S.W.2d 884

327 Mo. 470

Matthew Pearl Sloan, Appellant, v. The American Press, I. M. Levitt and Ida Levitt

No. 28492

Supreme Court of Missouri

March 31, 1931

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Affirmed.

Ernest A. Green and Oliver T. Remmers for appellant.

(1) The trial court erred in sustaining the motions for a new trial of all three defendants, and erred in granting defendants a new trial on the assigned ground that the plaintiff was guilty of contributory negligence as a matter of law. Under the evidence in the case the question whether the plaintiff was guilty of contributory negligence was a question of fact for the jury, and the trial court erred in granting a new trial to the defendants and in holding in so granting a new trial that plaintiff was guilty of contributory negligence as a matter of law. Powers v. Life Ins. Co., 91 Mo.App 55; Matthews v. Cedar Rapids, 80 Iowa 459; Chicago v. Babcock, 143 Ill. 358; Buesching v Gas Light Co., 73 Mo. 219, 232; Rose v. Fruit Co., 201 Mo.App. 262, 211 S.W. 85; Chance v. St. Joseph, 190 S.W. 24, 195 Mo.App. 1; Coffey v. Carthage, 186 Mo. 573; Brown v. Bell Tel. Co., 274 S.W. 878; O'Donnell v. Hannibal, 144 Mo.App. 155; Ryan v. Kansas City, 232 Mo. 471; Smith v. Kansas City, 184 S.W. 182; Eisele v. Kansas City, 237 S.W. 873; Wheat v. St. Louis, 179 Mo. 572; Woodson v. Street Ry. Co., 224 Mo. 685; Sindlinger v. Kansas City, 126 Mo. 315; Diamond v. Kansas City, 120 Mo.App. 185; Bianchetti v. Luce, 2 S.W.2d 129; Meschke v. Seattle, 26 Wash. 616; McClanny v. Spokane, 36 Wash. 339. (2) The burden rests upon the respondents to show that the verdict was properly set aside upon grounds contained in the motion for a new trial, other than those on which the trial court acted. Dietrich v. Brewery & Ice Co., 286 S.W. 38; State ex rel. v. Thomas, 245 Mo. 73; Kersten v. Hines, 283 Mo. 634, 223 S.W. 586.

Buder & Buder and G. A. Buder, Jr., for respondent, The American Press.

Pedestrians traveling a public sidewalk are charged with the duty to exercise ordinary care for their own safety and are therefore required to use their God-given senses, to walk with their eyes open and to observe their general course. One who does not observe this requirement and walks along a sidewalk carelessly and without paying attention to where he is going cannot recover when his conduct results in injury to himself. Therefore, even though a pedestrian does not possess prior knowledge of a defect in, or obstruction upon, a public sidewalk, still if by using his faculties and exercising ordinary care, he can discover the danger in time to avoid it, he cannot recover for his injury. It follows that the plaintiff herein was guilty of contributory negligence as a matter of law, and that the trial judge was correct in sustaining the defendants' motions for new trial on the ground that the instructions in the nature of demurrers to the evidence should have been given and read to the jury. Ryan v. Kansas City, 232 Mo. 471; O'Neill v. St. Louis, 292 Mo. 656; Smith v. Kansas City, 184 S.W. 86; Wheat v. St. Louis, 179 Mo. 572; Eisele v. Kansas City, 237 S.W. 874; Browning v. City of Aurora, 190 Mo.App. 487; Woodson v. Street Ry. Co., 224 Mo. 685; Sindlinger v. Kansas City, 126 Mo. 315; Diamond v. Kansas City, 120 Mo.App. 185; Solomon v. Duncan, 194 Mo.App. 517; Bonanomi v. Purcell, 287 Mo. 436.

Jones, Hocker, Sullivan & Angert for respondents I. M. Levitt and Ida Levitt.

The trial court correctly held that the demurrer to the evidence should have been sustained on the ground that the evidence conclusively showed that plaintiff was guilty of contributory negligence. (1) The guards or screens around the elevator shaft were in plain view of the plaintiff from the time he turned westwardly on Chestnut Street, at Fourth Street, until he fell. In his testimony the plaintiff admitted that he never saw the screens or guards until he fell. He also stated that he was not paying any attention to where he was going or what was in front of him, but, on the contrary, walked fifteen or twenty steps forward while looking backward over his left shoulder. Notwithstanding he had no prior knowledge of the existence of the elevator shaft, he had no right to proceed without looking at all for the purpose of determining where he was going. Ryan v. Kansas City, 232 Mo. 471; O'Neill v. St. Louis, 292 Mo. 656; Wheat v. St. Louis, 179 Mo. 580; Woodson v. Railway Co., 224 Mo. 701; Kaiser v. St. Louis, 185 Mo. 374; Coffey v. Carthage, 186 Mo. 585. (2) All of the evidence shows that the plaintiff fell into the elevator shaft over the north door or guard of the opening. He was walking toward the west and facing the tall screen. Therefore, before he fell, he must have passed this screen and fallen southwardly over the door or guard. The physical facts, together with the admissions of the plaintiff, conclusively show that he must have fallen as a result of his inattention and lack of care, no doubt enhanced by the fact that he had been drinking. (3) A pedestrian has no right to rely entirely upon the presumption that a sidewalk is in good condition, and, on account of such presumption, fail entirely to use his senses for the purpose of determining what is in front of him. Authorities, Point 1, supra.

Judson, Green, Henry & Remmers for appellant in reply.

(1) The law does not require a man to look for danger when he has no reason to anticipate it and when it does not exist except by the negligence of a third person. Crawford v. Stockyards Co., 215 Mo. 394; Shamp v. Lambert, 142 Mo.App. 567. (2) After plaintiff has made out a prima-facie case of negligence on the part of the defendant in causing an injury, then the plaintiff can never be declared guilty of contributory negligence as a matter of law, but that question must be left to the jury. Peterson v. Railroad Co., 265 Mo. 462; Cuccio v. Term. Railroad Assn., 203 S.W. 493.

Ellison, C. Seddon and Ferguson, CC., concur.

OPINION

ELLISON

The plaintiff was injured by falling into an open elevator shaft located in the areaway under a sidewalk in St Louis. He sued the corporate lessee and the individual owners of the abutting property upon which is situate the Times Building, and recovered a verdict for $ 15,287 damages. From the order of the circuit court setting aside that verdict and granting the defendants a new trial he has appealed.

On a former trial a verdict for appellant was set aside as being against the weight of the evidence (and for other reasons). The same judge presided at both trials. The stated ground upon which the verdict in the last trial was overturned is that prejudicial error was committed in the denial of the separate demurrers of the several respondents offered at the close of the appellant's case and at the close of the whole case, because appellant's conduct on his own showing convicted him of contributory negligence under the law as declared in Ryan v. Kansas City, 232 Mo. 471, Smith v. Kansas City, 184 S.W. 82, and other cases. These two decisions were cited by the circuit court in its memorandum opinion sustaining the respondents' motions for a new trial.

No issue is made on the pleadings. They sufficiently raised the issue of common-law and ordinance negligence on the part of the respondents in failing to guard the elevator shaft properly; and contributory negligence on the part of the appellant in failing to pay any attention to where he was going and in falling into the hole. The sole question to be determined on this appeal is whether the trial court was correct in holding the appellant guilty of contributory negligence as a matter of law on the undisputed facts. This necessitates a rather full review of the evidence. In doing so we shall set out much of the testimony stressed by appellant in his brief.

The Times Building is located at the northeast corner of the intersection of Chestnut Street and Fifth Street or Broadway as it is called. Chestnut is an east-and-west street and Broadway runs north and south. The sidewalk in question is on the north side of Chestnut Street and extends flush up to the building. Underneath is an areaway which forms a part of the basement. The elevator is a platform hoist running from the areaway up through the sidewalk, and is used mainly for lowering print paper to the basement. The rectangular opening therefor in the sidewalk is about 64 or 74 inches long east and west by 40 or 50 inches wide. When the elevator is not in use the opening is covered by a pair of iron doors which operate on hinges and close together horizontally, forming a part of the sidewalk. When the elevator is in use the doors swing upward on their hinges and are securely fastened so they stand perpendicular to the sidewalk and serve as guards or barriers some 20 to 24 inches high, on the north and south sides of the opening. While in this position they engage with or are fastened to reinforced iron-mesh screens 3 1/2 feet high on the east and west sides of the hole. Thus the screens confront or oppose the current of pedestrian traffic normally moving lengthwise along the sidewalk eastward and westward.

Plaintiff aged 33 years, met with his misadventure in mid-afternoon of June 2, 1924, a clear sunshiny summer day -- while proceeding west along the sidewalk with a companion named Murphy. They had come from the Pierce Building in the next block east. The place of the accident and the surroundings on that side of Chestnut between Fourth Street and Broadway are portrayed by Exhibits 1 [37 S.W.2d 885] and 2 shown herewith, which are photographs taken within fifteen to twenty minutes after the accident and exhibiting the same conditions as at the time thereof, save that the elevator platform is shown, whereas at the time...