Stratton v. City of Kansas City, Mo.

• Decision Date: 11 July 1960
• Docket Number: No. 1,No. 47597,47597,1
• Citation: 337 S.W.2d 927
• Parties: Joyce STRATTON, Respondent, v. CITY OF KANSAS CITY, MISSOURI, a Municipal Corporation, Appellant
• Court: Missouri Supreme Court

Page 927

337 S.W.2d 927

Joyce STRATTON, Respondent, v. CITY OF KANSAS CITY, MISSOURI, a Municipal Corporation, Appellant.

No. 47597.

Supreme Court of Missouri, Division No. 1.

July 11, 1960.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 12, 1960.

Richard H. Koenigsdorf, City Counsellor, Robert A. Meyers, John J. Cosgrove, Asst. City Counsellors, Kansas City, for appellant.

James H. Ottman, David H. Clark, Kansas City, for respondent. Sebree, Shook, Hardy & Ottman, Kansas City, of counsel.

HYDE, Judge.

Action for damages for personal injuries caused by a fall on a sidewalk. Plaintiff had a verdict for $15,000 and defendant has appealed from the judgment entered. Defendant contends that the court erred in refusing to direct a verdict in its favor. Therefore, we will consider the evidence from the viewpoint most favorable to plaintiff.

The evidence concerning her fall and most of the evidence as to the condition of the sidewalk came from plaintiff's own testimony. Plaintiff was employed as a teacher by the Red Shield Nursery School operated by the Salvation Army. One of her duties was to take kindergarten classes from the Nursery School on Thirteenth Street to the Franklin School on Fourteenth Street, a distance of about a block and a half, and later bring them back to the Nursery School. Her fall occurred in the morning of a January day when she was bringing 26 children from the Franklin School to the Nursery School, walking east on the north side of Fourteenth Street. It was snowing and there was 3 to 4 inches of snow on the walk. It was 'a loose, wet type of snow' and 'it was not packed snow.' There were 'foot-steps in the snow' but 'it wasn't a packed down path.' Plaintiff had been going over this sidewalk in her work for two and one-half years. She described the part of the walk east of the alley near the Franklin School, as follows: That is the part of the walk that is made up of the hexagon shaped blocks and they looked like they had been there for years and had hoofed and buckled, sunken in, some were up and some had bulged up and others had sunken. * * * they were very uneven.' Plaintiff said that on the day she fell there were 'stuck up places in the sidewalk that did show in this area of the sidewalk,' through the snow; and 'that was quite a long area of broken sidewalk.' Photographs in evidence confirm this description and indicate different elevations between block and pieces of blocks. Plaintiff estimated these blocks were raised in one place or another from a half inch to an inch and a half. The whole blocks were about 18 inches wide.

Plaintiff was wearing flat heels, loafer type shoes. She said she stopped the children after crossing the alley and told them to be more careful 'and to watch me and pick up their feet and put them down carefully as I did so they wouldn't fall and hurt themselves or get wet in the snow.' She described her fall as follows: 'I turned around and I took a step. When I started to take a second step I was doing it very carefully because I had made an illustration of myself to my children to do likewise. As I made my second step my toe caught an object and I was looking--it was partially covered with snow, it was not completely, the whole walk along there was not completely covered with snow but it was partially covered with snow. * * * As I made my second step my toe caught on the corner of one of those hexagon shaped blocks or I think it did, it couldn't have been anything else. That was the only thing there that protruded. * * * I did not slide, I didn't slip, I caught my toe on this object that just more or less suspended me and I was trying to catch myself. * * * Q. It was something that remained perfectly solid? A. Yes.' She said the protruding object, over which she fell, was about the middle of the sidewalk near the set of steps closest to the alley (two sets of steps into buildings are shown in the pictures); and that there were no bricks or rocks on the sidewalk.

Defendant contends that plaintiff failed to prove that her fall was caused by an actionable defect, relying mainly on Maxwell v. Kansas City, 227 Mo.App. 234, 52 S.W.2d 487, and Lundahl v. Kansas City, Mo.App., 209 S.W. 564. Defendant says that, while it may reasonably be inferred from plaintiff's testimony that she stumbled against a raised sidewalk block, this is no basis for the further inference that this raise or elevation was an actionable defect. In the Lundahl case (209 S.W. loc.cit. 565) the difference in the elevation of the blocks of the sidewalk (six feet square) was between two and three inches and the court said this case was along the border line but held issue of negligence should be left to the jury. In the Maxwell case, the court considered the difference in elevation between two concrete slabs of a sidewalk to be one and one-fourth inches, at the point where the plaintiff fell, which was caused by tree roots growing under it. The court said (52 S.W.2d loc. cit. 491): 'We have not found a case where the elevation extended so slightly above the surface and for so short a distance, and was the only defect relied upon'; and stated it was 'unwilling to extend the liability of a municipality to slighter defect than any heretofore declared.' However, the court really based its decision against liability on its finding that plaintiff's testimony as to the manner of her fall showed that it could not have been caused by the elevation. We reviewed the Lundahl and Maxwell cases in Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562, 564, and said: 'Whether an alleged defect constitutes negligence depends upon the facts of the particular case and ordinarily whether the condition complained of as defective, and as constituting negligence on the part of the city, is such that the sidewalk is not, because thereof, reasonably safe, is a question of fact for the jury, but, as we have noted, if the evidence most favorable to plaintiff shows that the alleged defect was of such a slight and trivial nature that it could not reasonably be anticipated that such a slight defect or variation in the surface of the sidewalk would likely cause injury to travelers, in the exercise of proper care for their own safety, plaintiff does not make a submissible case.' See also annotations, 119 A.L.R. 161 and 37 A.L.R.2d 1187; 25 Am.Jur. 774, Sec. 488.

However, in this case, we do not have a situation where the only defect relied on was a slight elevation of one whole section of a walk over that adjoining it. Here plaintiff's testimony and the pictures in evidence show that from the alley for a considerable distance east (beyond the first set of steps) the sidewalk was composed of hexagonal blocks, some broken into several pieces, with some blocks and pieces of blocks bulged up and others sunken, which plaintiff said had elevations between the edges varying from one-half inch to one and one-half inches. A difference of one and one-half inches in elevation between two whole adjoining sections of a sidewalk would be easier to see and avoid than would such differences of elevation in many places in a sidewalk due to bulged and sunken blocks and pieces of blocks throughout, with various elevations between them, making the whole walking surface rough and uneven. Therefore, our view is that whether this defective condition made this sidewalk not reasonably safe and constituted negligence on the part of the city was a question for the jury.

Defendant further contends that, even if it be held that the condition of the walk was actionable, nevertheless there was no proof whatever of the height of the elevation against which she struck her foot; that it could have been a half inch or less; and that it is uncertain whether plaintiff stubbed her toe on a raised place or slipped on the snow. Therefore, defendant claims the evidence was not sufficient to show that any actionable defect was the cause of plaintiff's fall and that the cause was left to speculation and conjecture, citing Ray v. City of Poplar Bluff, Mo.App., 102 S.W.2d 814, and Luettecke v. St. Louis, 346 Mo. 168, 140 S.W.2d 45. In both of these cases, the evidence indicated that the plaintiff fell before reaching the obstruction alleged to have been negligently permitted by the City. The applicable principle of nonliablility was thus stated (140 S.W.2d loc. cit. 51): 'If the injury may have resulted from one of two causes, for one of which, and not the other, the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result; and, if the evidence leaves it to conjecture, the plaintiff must fail in his action.' However, in this case, plaintiff's testimony definitely eliminated slipping on the snow and showed that she was tripped by a solid, immovable part of the sidewalk while she was demonstrating to the children how to walk carefully. The pictures do show variations in elevation between many portions of the sidewalk blocks through a considerable part of the middle of the sidewalk, near the steps closest to the alley. It is true, as defendant points out, there is no direct evidence as to height of the block over which plaintiff stumbled. Nevertheless, from plaintiff's testimony as to what happened, and how it happened, and the condition of that part of the walk as shown by the evidence, including the pictures, our view is that the jury reasonably could infer there was at that place a defective condition of the sidewalk with the maximum estimated elevation, due to bulging and sinking of blocks and pieces of blocks, which caused her fall and that defendant was negligent in permitting it to remain in that condition. See Corley v. Kroger Grocery & Baking Co., 355 Mo. 4, 193 S.W.2d 897; Douglas v. Douglas, Mo.Sup., 255 S.W.2d 756; Proctor v. City of Poplar Bluff, Mo.App., 184 S.W. 123; Seigel v. Kroger Grocery & Baking Co., Mo.App., 164 S.W.2d 645; Genova v. Kansas...