Suttmoeller v. City of St. Louis

• Decision Date: 09 April 1921
• Docket Number: No. 21714.,21714.
• Parties: SUTTMOELLER v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

230 S.W. 67

SUTTMOELLER v. CITY OF ST. LOUIS.

No. 21714.

Supreme Court of Missouri, Division No. 1.

April 9, 1921.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Action by Stephen Suttmoeller against the City of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles H. Daues, Arthur H. Bader, and H. A. Hamilton, all of St. Louis, for appellant.

Earl M. Pirkey, of St. Louis, for respondent.

RAGLAND, C.

Plaintiff fell on a sidewalk along one of the public thoroughfares of the defendant city, breaking both bones of the left leg just above the ankle. This action is to recover for the injury, which it is alleged was caused by the negligence of defendant in allowing the walk to remain in a dangerous condition from accumulations of snow and ice. Plaintiff prevailed in the court below, obtaining judgment for $1,500, and defendant appealed. We are asked to reverse the judgment on the grounds that plaintiff's evidence discloses that the ice and snow where he fell were not an obstruction for which the defendant is liable, and that his fall was due to his own negligence.

The locus in quo was on the west side of Thirteenth street, between O'Fallon avenue and Cass avenue, about two feet east of the building line and about three feet south of the entrance into the building known as No. 1439 North Thirteenth street, and which was occupied by the Bechler Lock Box Company, a manufacturing concern. Dr. L. O. Wolter, a witness for plaintiff, testified that within an hour or two after the accident he saw the place where plaintiff claimed to have fallen. The condition existing there at that time, as he saw it, can best be described in his own language:

"Q. I understand you say there were rough places? A. I said there were drifts of snow on the sidewalk, snow and partial ice. It was not smooth. It was very irregular.

"Q. Those places, about how high were they above the surface? A. They were markedly irregular. * * *

"Q. These rough, irregular places you spoke about, give us some limits of how high they were above the surface; about what was their elevation? A. There was a marked bank or a mound of snow, especially pronounced at the east half of the sidewalk and towards the building, and between it seems the pedestrians had been walking, and on account of the thawing and slush the footsteps would go in and make depressions, and subsequently that froze and made it very irregular. I did not measure the elevations, but I say about half a foot on an average. * * *

"Q. Then of your own knowledge you don't know whether you were looking at the exact spot where Mr. Suttmoeller fell or within 50 or 100 feet of it? A. All I know there was a sufficient drift of snow, a cushion of snow, a mound of snow, whatever you call it, up against this building, and I know it was an extremely dangerous place, because of this snowdrift and because of this sidewalk entering this factory has a slope to it, and with the gathering of this ice and snow it makes it exceedingly dangerous, and I presume he fell there. I did not see him fall. * * *

"Q. When you speak of a drift of snow in front of the Bechler Lock Box Company, what do you mean? A. I mean an accumulation of ice and snow in the form of a drift or ridge.

"Q. Carried there by the elements, or put there by man? A. I presume by both, by drifting and by man.

"Q. How far did that drift extend from the building line onto the sidewalk? A. How is that?

"Q. How far did that drift extend out from the building? A. To the street?

"Q. Yes. A. All the way.

"Q. You spoke about a pathway, ice and snow present, and ridges caused by people walking over it and freezing. What did you mean by that? A. Just what I said.

"Q. Where was that particular condition of the sidewalk in reference to the Bechler Company? A. That was across that drift and ridge of snow and ice.

"Q. Through the center? A. I don't want to say it was through the center. It seems to me it was a little more towards the building because the drift enlarged as it went towards the street.

"Q. This rough part, how did you say that was caused? A. By the elements and by man, just as you said."

Dr. Wolter further testified that he lived a block and a half from the place in question, and that the condition he described had existed for at least two weeks prior to plaintiff's fall.

According to plaintiff, he left his place of employment at Ninth and Olive streets about 5 o'clock in the evening of February 4, 1918, to go to his home at 3117 North Jefferson street. After traversing some 15 or 16 blocks, he reached Thirteenth Street and proceeded thence north on the west side of the street. When he got to O'Fallon avenue, he left the sidewalk and went out into the street. He found the street, which had an asphalt surface, very slippery. After walking a distance of about 150 feet, he concluded that the sidewalk would be the safer and returned to it. He then continued on north to the place, heretofore described, where he fell. This place, he said, was "rough and hilly, caused by the snow and ice, and it was slick in some places from the ice"; that he happened to step with his left foot on a ridge of ice from 3 to 6 inches high; and that his foot slipped, causing him to fall. It was then about 5:30, commencing to get dark, but he could see the snow and ice. He further testified that he had passed over the same accumulation of snow and ice on two previous occasions, once two or three weeks before, and again only three or four days before; that at both of these times the walk was in practically the same condition it was in when he approached at the time he fell; that he knew the place was dangerous, but he saw other people walking over it, and he thought that by being careful he could safely do so. On cross-examination he said that he...