State ex rel. City of Cameron v. Trimble

• Decision Date: 06 October 1928
• Citation: State ex rel. City of Cameron v. Trimble, 9 S.W.2d 876, 321 Mo. 221 (Mo. 1928)
• Parties: THE STATE EX REL. CITY OF CAMERON v. FRANCIS H. TRIMBLE ET AL., Judges of Kansas City Court of Appeals.
• Court: Missouri Supreme Court

9 S.W.2d 876 THE STATE EX REL. CITY OF CAMERON
v.
FRANCIS H. TRIMBLE ET AL., Judges of Kansas City Court of Appeals. Supreme Court of Missouri. Division Two. October 6, 1928.

Certiorari.

WRIT QUASHED.

Walter E. Trice, J.M. Johnson and Dan H. Frost for relator.

(1) Plaintiff's own testimony conclusively established her contributory negligence and the jury should have been peremptorily directed to return a verdict for defendant. O'Neil v. City of St. Louis, 292 Mo. 656; Crain v. Met. St. Ry. Co., 246 Mo. 393; Welch v. McGowan, 262 Mo. 709; Waldman v. Const. Co., 289 Mo. 622; Bonanomi v. Purcell, 287 Mo. 476; Main v. Lehman, 294 Mo. 279; Wheat v. City of St. Louis, 179 Mo. 572; Mullen v. Mercantile Co., 260 S.W. 982; Haworth v. Railway Co., 293 S.W. 508. (2) Instruction 2 given at the request of plaintiff, was erroneous in this, to-wit: It permitted the jury to find that the plaintiff was in the exercise of reasonable care for her own safety, notwithstanding the facts that the walk was not reasonably safe for use, and that she had knowledge of its defects and dangers. Crain v. Met. St. Ry., 246 Mo. 406.

Pross T. Cross and Gerald Cross for respondents.

(1) The opinion of the Court of Appeals is not in conflict with latest ruling of this court. Plaintiff was not negligent as a matter of law. (a) The last ruling of the Supreme Court (en banc) on the identical question involved here, was in the case of Megson v. City of St. Louis, 264 S.W. 15. It is the very latest decision of this court on the question of contributory negligence raised by relator. (b) The cases cited by relator are not in point. (2) Defendant with miscroscopic eye separates from plaintiff's evidence some half a dozen questions and answers, places a self-gratifying interpretation on it, and then asks this court to brand her with contributory negligence by giving her the most unfavorable inference to be derived from such testimony. This is not the law. She is entitled to the most favorable inference from it, according to the old and oft-repeated rule. (3) The proper rule, and the one announced by the learned Court of Appeals, is that even though the walk was dangerous, and even though plaintiff saw and knew this, yet she could not be held guilty of negligence as a matter of law unless the danger of using the walk, in its then condition, was so obvious and glaring that a person of ordinary prudence would not undertake to go upon it. And this was a question for the jury. Heberling v. Warrensburg, 204 Mo. 617; Loftis v. Kansas City, 156 Mo. App. 685; Howard v. City, 148 Mo. App. 67.

HENWOOD, C.

This is a proceeding by certiorari to review the record of the Kansas City Court of Appeals in affirming a judgment against the city of Cameron, relator herein. In the original suit, Emma Wyckoff, as plaintiff, obtained a judgment for damages in the sum of $6000 against the city of Cameron, for personal injuries suffered by her while walking on a defective sidewalk in said city. Its appeal having resulted in an affirmance of the judgment, the city now seeks to quash the record of the Court of Appeals, alleging a conflict between the opinion of that court and controlling decisions of this court.

In order that the questions involved in the alleged conflict may clearly appear, we quote at length from the opinion of the Court of Appeals, as follows:

"The facts show that plaintiff was injured about eleven P.M. of January 26, 1924, while walking upon 4th Street in the city of Cameron. She fell upon an icy sidewalk, breaking off the head of the femur bone. Plaintiff was a widow, past sixty-three years of age, and worked at a store in the city of Cameron. She was on her way home from the store, having traversed about three blocks at the time she fell. The sidewalk was composed of flagstones about three and one-half feet square. There was a defect in the sidewalk where she was injured that had existed for upwards of two years, caused by a depression in a broken flagstone. The depth of the depression ranged from one and a half to five inches. The testimony is that the sidewalk at the depression was `broken,' `ragged,' `rough,' `slanting,' `bulged,' and `ridged up;' that water would collect in the depression, or broken place, and when the weather was cold enough the water would freeze and become slippery. Plaintiff's lunch had been brought to her earlier in the evening, and at the time she fell she carried a small lunch basket on her arm and had her hands in a muff, the night being very cold. She testified that she did not know whether the ice that had frozen in the broken place was smooth, but that the walk was `all rough and bulged and ice had frozen in there;' that on account of the cold she was hurrying home.

"There is some conflict in the testimony as to whether there was a general snow and icy condition over the city at the time of the casualty, but plaintiff's testimony tends to show that while there had been a snowfall some days prior to this time, the streets and sidewalks of the city at the time in question were generally free of ice and snow except in depressions and low places where water from melted snow and ice had collected and frozen. There was no precipitation on Thursday, Friday or Saturday prior to plaintiff's fall.

"Defendant's evidence shows that on January 24th the highest temperature was thirty-seven degrees above zero, which prevailed from eleven A.M. to four P.M., and the lowest temperature was twenty-two degrees above zero, which occurred at midnight of the 24th; on the 25th the highest was twenty-two above, which occurred at midnight on the 24th, and the lowest on the 25th was eight degrees above zero, which occurred at midnight of the 25th; on the 26th, the highest temperature was thirty-one degrees, which occurred at three P.M., and the lowest eight degrees above zero, which prevailed from midnight until four A.M. It appears from this testimony that the last thawing weather before plaintiff fell was between eleven A.M. and four P.M. of January 24th.

"Defendant insists that its demurrer to the evidence should have been sustained; because, first, there was no liability shown on the part of the defendant, and second, plaintiff was guilty of contributory negligence as a matter of law. We think there is no question but that plaintiff made out a case to go to the jury on the question of the city's negligence. Defendant contends that there was a general snow or icy condition of the streets and sidewalks in the city at the time plaintiff fell and that there is no evidence that plaintiff fell over any rough or rigid ice. The evidence taken in its most favorable light to plaintiff shows no general snow or icy condition present. There is ample evidence of constructive notice to the city of the presence of the ice as well as the defect in the sidewalk itself. It is contended that the ice might have melted from the terrace during the day and run into the depression and frozen the night that plaintiff fell, and, therefore, the city had no notice. According to the temperature shown by the testimony of defendant's witness, water could not have run

9 S.W.2d 877

into the depression after four P.M. of January 24th, two days prior to the time plaintiff fell, as there was no thawing weather between those dates. Defendant's street commissioner testified that he was over the sidewalks of the city at least once a week, looking for defects, and that he was over the sidewalk where plaintiff was hurt the night of the injury. One of the proximate and concurring causes of plaintiff's fall and injury, was the defect in the sidewalk itself, which had existed for two years or more. This, together with the presence of the ice, caused plaintiff's injury. Constructive notice was shown as to the presence of both the ice and the defect in the sidewalk.

"It is claimed that plaintiff was guilty of contributory negligence because she testified that on the morning of the 25th, while going to work, she passed over the place where she fell; that it was in the same condition then as it was when the casualty occurred; that she was hurrying home with knowledge of the defect, with a basket on her arm and her hands in her muff. In this connection, much emphasis is placed upon the following testimony of plaintiff on cross-examination:

"`Q. How were you walking, with your head down? A. No, sir. I was walking straight ahead.

"`Q. You were not walking like Mr. Cross said, rushing? A. Well, I was going straight home.

"`Q. And it was not with your head down, going tripping along there? A. Well, I was walking along at a good gait.

"`Q. You were not paying any attention to the walk then, were you? A. Well, the walk was very good every place until I got to that.

"`Q. You did not pay any attention to that? A. I did not need to. The walk was perfectly good all the way from the store there.

"`Q. I say, you did not pay any attention? A. No, sir; if that walk had been good, I would have walked on straight home.

"`Q. You say you did not pay any attention, though, to the walk up to the time you fell? A. No; I just walked right on.'

"The mere fact that plaintiff knew of the defective condition of the sidewalk does not as a matter of law bar recovery...