State ex rel. Snyder v. Trimble
| Decision Date | 22 March 1924 |
| Citation | 262 S.W. 697 |
| Parties | STATE ex rel. SNYDER v. TRIMBLE et al., Judges |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled May 13, 1924.
C. R Leslie and Atwood, Wickersham, Hill, Levis & Chilcott all of Kansas City, for relator.
Morrison Nugent, Wylder & Berger and Howard L. Hassler, all of Kansas City, for respondent Central Coal & Coke Co.
John B Pew and Illus M. Lee, both of Kansas City, for respondent Kansas City.
In Banc. All concur, GRAVES, J., in result.
This is a proceeding under a writ of certiorari to review the judgment of the Kansas City Court of Appeals in the case of Ada G. Snyder v. Kansas City and the Central Coal & Coke Company, in which the circuit court of Jackson county had rendered a judgment of $ 7,500 against the dedefendants which upon an appeal to the Court of Appeals was reversed. The petition for this writ is based upon an alleged conflict between the Court of Appeals' opinion and that of prior rulings of the Supreme Court on the question as to the use by the public of a sidewalk as affecting the plaintiff's contributory negligence. The error alleged to have been committed by the trial court upon which the judgment of reversal of the Court of Appeals is based was the refusal of the former to sustain a demurrer filed by the defendants to the plaintiff's evidence. From this evidence, as set forth in the Court of Appeals' opinion, it is to be determined whether the same is in conflict with prior decisions of this court alleged to involve the same or a state of facts similar in all of their material features to those in the opinion.
The relator here, the plaintiff below, was a woman about 60 years of age. On March 5, 1919, at about 3:30 o'clock p. m., while she was en route to her home in Kansas City, she crossed Thirty-Sixth street and ascended a concrete driveway from the street to the sidewalk. As she reached the outer edge of the sidewalk she stepped into a hole in the same, fell, broke her right arm, and sustained other injuries. The driveway had been constructed a number of years before the accident to enable coal wagons to drive near a coal hole in the wall of an adjacent apartment building. A truck of a coal company had broken the hole in the sidewalk which caused the injury. This hole was about 18 or 20 inches in diameter and about 4 inches in depth. It was a clear day. Plaintiff stated that her eyesight was good, and as she approached she saw that the surface of the walk was broken. She did not see the hole until she stepped upon the driveway, and when she saw it did not realize that it was a dangerous place. When she neared it she paused, deeming it a dangerous place, but thought she could cross it in safety, and she made the effort, and fell, with the result stated. She testified that she was usually sure-footed and careful in walking, but that in trying to step over the hole she made a misstep in some way and stumbled and fell. She did not realize that the walk was so badly broken until she got there, when she found it was in worse condition than she had thought it to be before reaching it. She further stated that there was nothing deceptive about the appearance of the hole; that by taking a few steps she could have gone around it; that she had been over the sidewalk many times before she was hurt, and had probably noticed the hole, but had paid no particular attention to it.
I. To sustain the contention that the evidence adduced did not authorize the Court of Appeals' ruling that the plaintiff was guilty of contributory negligence as a matter of law, a case involving a parallel state of facts in which this court has ruled to the contrary is a requisite. Cases on all fours, as the metaphorical expression has it, are not frequent. By this is meant cases wherein the material facts present sufficiently similar features to authorize a like conclusion in both. With commentable clearness counsel for the plaintiff have cited and discussed numerous cases which are alleged to conflict with the ruling under review. These require our attention.
In Kiefer v. St. Joseph (Mo. Sup.) 243 S.W. loc. cit. 105, which refers for the testimony to a former appeal (229 S.W. loc. cit. 1091), it was contended that the plaintiff was guilty of contributory negligence as a matter of law in attempting to walk along a sidewalk known to be dangerous when he could have passed around it. The portion of the street over which he would have been required to walk in avoiding the sidewalk was covered with sleek ice. The sidewalk where he started to use it, in the early morning before it was light, was covered with cinders, which he thought continued to the end of the ice. Thus reasoning he chose the sidewalk as the safer way, and did not discover that there were no cinders where he fell until he put out his hands in an effort to get up. The court held that the question of contributory negligence was for the consideration of the jury. This holding was based on the fact that, although plaintiff had a general knowledge of the dangerous character of the walk when it was not covered with cinders, he was authorized in concluding from the apparently safe condition of the walk where he stepped upon it that this condition continued. The semidarkness of an early February morning prevented him from seeing where the cinder covering terminated. The distinguishing differences in the facts in this case and that under review are the plaintiff's lack of knowledge of the situation in the one case and complete knowledge in the other, and the inability of the plaintiff in the Kifer Case, on account of the darkness, to see the defect and the opportunity daylight afforded to observe it in the case at bar.
In Suttmoeller v. City of St. Louis (Mo. Sup.) 230 S.W. 67, the facts are not similar to those at bar. In that case the plaintiff was en route home from his work. It was about 5:30 o'clock p. m., and was beginning to get dark. When he reached a point on Thirteenth street between O'Fallon and Cases avenues he found the street very slippery, and, seeing others walking on the sidewalk, he thought he could safely do so. He attempted it, fell on the ice, and was injured. Plaintiff's familiarity with the location is not shown and in other...
To continue reading
Request your trial