Tower v. City of St. Louis

• Decision Date: 04 March 1941
• Citation: 148 S.W.2d 100,235 Mo.App. 1026
• Parties: JANETTE M. TOWER, RESPONDENT, v. THE CITY OF ST. LOUIS, A MUNICIPAL CORPORATION, CHARLES W. BOWEN AND ELIZABETH BOWEN, DEFENDANTS, CHARLES W. BOWEN AND ELIZABETH BOWEN, APPELLANTS
• Court: Missouri Court of Appeals

148 S.W.2d 100

235 Mo.App. 1026

JANETTE M. TOWER, RESPONDENT, v. THE CITY OF ST. LOUIS, A MUNICIPAL CORPORATION, CHARLES W. BOWEN AND ELIZABETH BOWEN, DEFENDANTS, CHARLES W. BOWEN AND ELIZABETH BOWEN, APPELLANTS

Court of Appeals of Missouri, St. Louis

March 4, 1941

Appeal from Circuit Court of City of St. Louis.--Hon. John W. Joynt Judge.

REVERSED.

Judgment reversed.

Hay & Flanagan and Louis L. Hicks for respondent.

(1) Evidence of repairs made by a defendant subsequent to plaintiff's injury may be considered by the jury in determining the duty of a defendant or the ownership of the service pipe in question. Benton v. St. Louis, 217 Mo. 697, 709, 32 L.R.A. (N. S.) 1142; Woods v. M. K. & T Railway Co., 51 Mo.App. 500; Walker v. The Town of Point Pleasant, 49 Mo.App. 244, 248; Fisher v. St Joseph Water Company, 151 Mo.App. 530.

Leahy, Walther & Hecker and Wm. O'Herin for appellants.

The court erred in refusing to give and read to the jury defendants Charles W. Bowen and Elizabeth Bowen's instruction in the nature of a demurrer to the evidence requested at the close of all the evidence for the reasons: (a) That there was no evidence that these defendants owned or installed the water service pipe in which the leak occurred. Therefore, no obligation of maintenance rests upon them. (b) That there was no evidence of any negligence on the part of these defendants. (c) That there was no evidence that these defendants had either actual or constructive knowledge of any defect or leak in said water service pipe. Crocker v. Schureman, 7 Mo.App. 358; Oettel v. J. A. Schaefer Const. Co. (Mo. App.), 51 S.W.2d 870; Morrison v. Burgess Sulphite Fibre Co., 70 N.H. 406, 47 A. 412; Schindler v. Standard Oil Co., 207 Mo.App. 190.

McCULLEN, J. Hughes, P. J., concurs. Anderson, J., not sitting because not a member of the court when the cause was submitted.

OPINION

McCULLEN, J.

--This suit was brought by respondent, as plaintiff, against The City of St. Louis and Charles W. Bowen and Elizabeth Bowen, as defendants, to recover damages for personal injuries resulting from slipping on ice in the street at the intersection of Clayton and Central Avenues in the City of St. Louis. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff in the sum of $ 500 and against all defendants. Charles and Elizabeth Bowen alone have appealed.

Plaintiff's amended petition, upon which the case was tried, alleged that defendants Bowen owned property at 6749 Clayton Avenue in the City of St. Louis, and were supplied with water by defendant The City of St. Louis, and owned and were maintaining and in control of a service pipe through which water ran from the main of defendant The City of St. Louis under the pavement of Clayton Avenue to the water pipes in said property of defendants Bowen; that, on December 10, 1936, and for a long time prior thereto, there was a leak in said service pipe from which water flowed and came up through the paving on Clayton Avenue at a point in front of said property; that, on December 10, 1936, while plaintiff was walking on Clayton Avenue in front of said property, she was caused to slip and fall on ice which had formed from said water and thereby sustained serious and permanent injuries.

The negligence alleged against defendant The City of St. Louis was (1) that it failed to exercise ordinary care to keep and maintain said street in a reasonably safe condition for ordinary travel by pedestrians in that on the date aforesaid, and for a long time prior thereto, it negligently suffered and permitted water to come up through the paving on Clayton Avenue at the point aforesaid when it knew, or by the exercise of ordinary care would have known, of said condition, in time thereafter to have prevented the same; (2) that said defendant on the date aforesaid, and for a long time prior thereto, negligently permitted said street to be and remain covered with ice formed by the water which came up through the paving when it knew, or by the exercise of ordinary care would have known, of the presence of said ice on the street, in time thereafter by the exercise of ordinary care to have removed same.

The negligence alleged against defendants Bowen in plaintiff's amended petition was (1) that said defendants negligently suffered and permitted said service pipe to leak, and water therefrom to come up through the pavement of the street when defendants knew, or by the exercise of ordinary care would have known, that said pipe leaked and that water therefrom coming up through the pavement would be apt to freeze and make said street slippery and dangerous for pedestrians, in time thereafter by the exercise of ordinary care on the part of said defendants to have repaired said leak; (2) that said defendants negligently failed to inspect said service pipe when, by the exercise of ordinary care in so doing, defendants would have discovered the leak in said pipe in time, thereafter by the exercise of ordinary care, to have repaired the same; (3) that said defendants negligently failed to repair the leak in said service pipe when they knew, or by the exercise of ordinary care would have known, that it leaked, in time thereafter by the exercise of ordinary care to have repaired said leak; (4) that said defendants negligently failed to remove the ice formed from the water which leaked from said service pipe when, by the exercise of ordinary care, they could have done so prior to plaintiff's falling thereon.

All defendants answered with general denials coupled with pleas of contributory negligence on the part of plaintiff in that, in crossing the street, plaintiff failed to look where she was walking; that, by the exercise of ordinary care, plaintiff could and would have discovered and avoided said icy street and would have avoided the injuries alleged, but negligently and carelessly failed to do so.

No point is made in this appeal with respect to the nature or extent of plaintiff's injuries, hence it will not be necessary to refer to that subject.

The defendants Bowen contend that the trial court erred in refusing to give and read to the jury the instruction in the nature of a demurrer to the evidence requested by them at the close of all the evidence.

Clayton Avenue is a street running east and west in the City of St. Louis; Central Avenue runs north and south and intersects Clayton Avenue at an angle. It was admitted that the defendants Bowen owned and lived in the house numbered 6749 Clayton Avenue, at the northeast corner of the intersection of the two streets named. The evidence showed that a twelve-inch water main ran east and west in the center of Clayton Avenue about four feet below the surface. Connected with the twelve-inch main in front of the Bowen property was a lead service pipe through which water was conveyed into the Bowen house. The lead service pipe was connected into the twelve-inch main at a shut-off valve attached to the main. It appears that in July, 1935, the City of St. Louis laid a new sixty-inch steel water main just south of the center line of Clayton Avenue; that said new water main entered Clayton Avenue at Skinker Boulevard and ran east, under Clayton Avenue, to the intersection of Clayton and Central Avenues where it turned to the south; that excavating was done at the intersection by the City of St. Louis at that time in digging the trench for the new main as well as other work in the street in connection therewith.

Defendants' Exhibit No. 1, a photograph of the intersection, which was introduced in evidence, shows that Clayton Avenue, which was paved with asphalt, contained a great many cracks in the surface of the street. It appears without dispute that the weather had turned colder on December 10, 1936, and the water, which came up through cracks in the pavement of the street, froze and formed ice on the street.

Plaintiff lived on the north side of Clayton Avenue in the block immediately east of Central Avenue. About 3:30 P. M. on December 10, 1936, on a visit to a nearby store, she walked on the north side of Clayton Avenue to the corner of Central Avenue and crossed on the east side of Central Avenue to the south side of Clayton. She noticed the ice on the street and walked over it. Returning from the store, she crossed Central Avenue to the east side thereof and then started to cross to the north side of Clayton Avenue when she slipped on the ice and fell. Shortly thereafter she was taken to her home and later in the afternoon a police officer of the City of St. Louis interviewed her.

In the early afternoon of the next day, December 11, 1936, John Nockenhorst, an inspector of the Water Department of the City of St. Louis, received an emergency call from the Police Department, notifying him there was a leak in the street at the intersection mentioned. Mr. Nockenhorst testified that after receiving the notice, he immediately went out to the intersection and saw the street full of water; that "we sounded the service at 6749. By sounding the service I mean we had a shut-off key and we put that on the T-head at the stop box and put a telephone receiver on it to sound the service. The stop box is located between the curb and the sidewalk. . . . We have an aquaphone to make that test. You put it up to your ear like a telephone and hook it on the shut-off key. If there is a leak in the private pipe it will give you a whistling noise. . . . This test that I made was on a water pipe leading into the home of Mr. and Mrs. Bowen at 6749 Clayton Avenue." The witness further testified that he served a notice on defendant Mrs. Bowen to have the leak repaired in twenty-four hours or the water would be shut off. On cross-examination, the witness testified: "When we have a...