Tappmeyer v. Ryckoff

• Decision Date: 02 February 1932
• Docket Number: 21390
• Citation: 45 S.W.2d 890
• Parties: TAPPMEYER v. RYCKOFF
• Court: Missouri Court of Appeals

45 S.W.2d 890

TAPPMEYER v. RYCKOFF

No. 21390

Court of Appeals of Missouri, St. Louis

February 2, 1932

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

“ Not to be officially published.”

Action by Lydia Tappmeyer against A.M. Ryckoff and another. There was a verdict in favor of named defendant, and, from an order sustaining plaintiff’s motion for a new trial, named defendant appeals, and on named defendant’s death during the pendency of the appeal the cause was revived in the name of Nina M. Ryckoff, executrix of his estate.

Affirmed, and cause remanded.

Wilbur C. Schwartz, of St. Louis, for appellant.

Robert Kelley and Alva W. Hurt, both of St. Louis, for respondent.

OPINION

BECKER, J.

Plaintiff’s action was filed against the city of St. Louis and A.M. Ryckoff, as defendants, for damages for personal injuries alleged to have been sustained by her as the result of a fall which she sustained while walking northwardly on the west side of Spring avenue between Lincoln and Cottage avenues in the city of St. Louis, Mo.

The petition upon which the case was tried contained three assignments of negligence. The first and second assignments of negligence in effect charges both of the defendants with having failed to exercise ordinary care to keep and maintain the sidewalk at the place where plaintiff alleged in her petition she had fallen, in a reasonably safe condition for public use, in that defendants permitted the sidewalk to be covered with dirt, clay, earth, wet dirt, and wet clay causing the sidewalk to become slick and slippery. The remaining assignment of negligence alleges failure on the part of the defendant, Ryckoff, to place a covering upon the dirt which defendant caused to be placed on the sidewalk, and as a result of which failure, because of rainfall, it was caused to become slick and slippery.

The answer of each of the defendants was a general denial and a plea of contributory negligence on the part of plaintiff.

The reply was conventional.

At the close of plaintiff’s case, the court gave an instruction on behalf of defendant, city of St. Louis, in the nature of a demurrer, whereupon an involuntary nonsuit was taken by plaintiff as to said defendant. At the conclusion of the entire case, upon submission to the jury, a verdict resulted in favor of defendant, Ryckoff. In due, course, however, the court sustained plaintiff’s motion for a new trial, and defendant, Ryckoff, brings this appeal.

During the pendency of the appeal, defendant, Ryckoff, died, and the cause has been revived in the name of Nina M. Ryckoff, executrix of the estate of A.M. Ryckoff, deceased.

The record discloses that the trial court granted the new trial on the tenth, eleventh, and twelfth grounds set up in plaintiff’s motion for new trial, which pertain to instructions numbered 5, 6, and 7, given at the request of defendant, relating to the burden of proof required of plaintiff and as to the care required of pedestrians using public sidewalks.

Defendant here on appeal insists that said instructions given at her request correctly state the law, and that the trial court erred in granting the new trial.

In our view, plaintiff’s motion for new trial was properly ruled. Instruction numbered 5, given at the request of defendant, reads as follows:

"The Court instructs the jury that the burden of proof is on the plaintiff to establish by the preponderance or greater weight of the evidence, the facts necessary to a verdict in her favor under these instructions.

"The Court uses the term ‘burden of proof’ and ‘preponderance of the evidence’ by way of briefly expressing the rule of law, which is, that unless the evidence (as to such issue) appears in your judgment to preponderate, in respect to its credibility, in favor of the party to this action on whom the burden of proof (as to such issue) rests, then you should find against such party on said issue."

We view this instruction in light of the pleadings. Defendant’s answer having specifically charged plaintiff with contributory negligence, the burden of proof on the issue of the contributory negligence is on the defendant, and it is error to instruct the jury that the burden of proof is on plaintiff to establish the material allegation of her complaint without stating that the burden of establishing the truth of the answer lies on defendant. Chaar v. McLoon, 304 Mo. 238, 263 S.W. 174; Groom v. Kavanaugh, 97 Mo.App. 262, 71 S.W. 362; Stevens v. Stephens, 14 Utah, 255, 47 P. 76; Randall’s Instructions to Jury, vol. 1, p. 401 § 205.

So too it was error to give defendant’s instruction 6, which reads as follows: "The Court instructs the jury that if you find and believe from the evidence that at the time and place mentioned in the evidence that the plaintiff failed to watch...