Vick v. City of De Soto

• Decision Date: 07 October 1935
• Docket Number: No. 5572.,5572.
• Citation: 86 S.W.2d 367
• Parties: VICK v. CITY OF DE SOTO.
• Court: Missouri Court of Appeals

86 S.W.2d 367

VICK v. CITY OF DE SOTO.

No. 5572.

Springfield Court of Appeals. Missouri.

October 7, 1935.

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

"Not to be published in State Reports."

Action by Ella Vick against the City of De Soto, Missouri. Judgment for plaintiff, and defendant appeals.

Affirmed.

Chas. W. Green, of De Soto, for appellant.

Edgar & Matthes, of De Soto, for respondent.

ALLEN, Presiding Judge.

This action was begun in the circuit court of Jefferson county, and on a change of venue was sent to Iron county, where it was tried to a jury on November 27, 1934, resulting in a verdict for plaintiff, in the sum of $2,500. A motion for new trial was filed and overruled, and defendant appeals to this court.

Respondent alleged that she sustained injuries by reason of falling into a hole at or near the intersection of Landsdowne and North Second streets, in appellant city of De Soto. That the hole into which she fell was about 2½ to 3 feet in depth and about one foot from the intersection of said streets, at the northwest corner thereof. Respondent further alleged that permanent injuries resulted from said fall.

Appellant, by its answer, admitted that it was a city of the third class; that the streets mentioned in respondent's petition were open and public streets in said city; but denied that it had permitted or had knowledge of the existence of the hole alleged.

Respondent testified that she was 61 years of age, and a resident of the city of De Soto at the time she received the injuries complained of in her petition. That at about 8 or 8:30 o'clock on the evening of May 5, 1934, she started from the business portion of appellant city to her home in the western part thereof. That when she arrived at about the northwest corner of the streets mentioned in her petition, and while she was walking in a westerly direction near the corner thereof, she fell into the hole described. It was then dark and there were no lights near. When she arrived at the east side of Second street and the south side of Landsdowne street, she went northwest across Landsdowne at Second street. As she crossed Landsdowne she observed a car coming out of Third street, onto Landsdowne and traveling east, in her direction. At about the time respondent reached the corner of the two streets she made a step and fell into a hole. She had been walking on a sand or chat walk on the north side of Landsdowne. There were grass and weeds growing around the place where she fell, obscuring the view of the hole into which she fell, which hole was about a foot from the side of the walk.

The petition alleged that respondent, in the fall, was bruised and injured. That her right ankle bone was broken in two places, at about her ankle joint. After she was removed from the hole or ditch, she was taken to Dr. Gibson's office, in the city of De Soto, where she was treated. She further said that the first time she saw the automobile it was coming out of Third street, then traveled east on Landsdowne. That she was almost across Landsdowne, and that she could not say how far she was from the place where she fell, when she first saw the car, but estimated it at about 10 or 12 feet. That Dr. Gibson set the bones in her ankle and put her ankle in a cast. That afterwards he called to see her at her home several times. That she did not know how many. That prior to her injuries on May 5, 1934, her leg was straight and the same size as the other leg. That at the time she gave her testimony at the trial she had to use a cane most of the time, because she could not support her weight on her ankle.

On cross-examination, respondent stated that no physician other than Dr. Gibson had treated her injuries. That she had not worked for any one since she had been in De Soto, except a Mr. Meister. She had worked for him about six weeks and had received about $15 per month and her board for that work.

Dr. Gibson testified that he had been a practicing physician in and near De Soto for forty years; that he first saw respondent at his office and made an examination of her, somewhere between 7 and 8 o'clock p. m. on the evening she was injured. That in addition to other injuries, two bones in the right leg were broken in practically the same place, about 1½ inches above the ankle joint, and that it was a square fracture. That he had some difficulty in getting the bones back in place. That he saw her every day until June 15th, then did not see her until September 15th, when he examined her leg at his office. That he knew there would be a little displacement, because he could not bind the bones perfectly, but he found it in the best position possible, although a little crooked, which makes it look awkward. That while he considered it a good job, the displacement is permanent. That during the months previous to September the 15th she had suffered much pain with her other injuries.

Other witnesses testified for respondent, amongst whom was Amos Stroupe, the driver of the car, which respondent saw approaching her, at the time she fell and was injured. He said he saw respondent going across the street, in front of his car, as he went down Landsdowne, and all at once she disappeared. That he went over to the place where she had disappeared and found she had fallen into a hole, on the north side of, and about one foot from, the edge of the walk. That the street at that point was about level, gradually sloping to the west.

Mabel Stroupe, wife of Amos Stroupe, testified that when she saw respondent, she was going northwest, across Landsdowne street. That she appeared to be hurrying a little bit, when she saw their car. That they went over to where she had fallen and was lying in the ditch. That it was on the north side of Landsdowne. That the pathway was close to the ditch in which respondent fell. That witness passed there every day after the accident and noticed the place. That there was a light pole close, upon which there had been a light, but there was none at the time of the accident. Witness said she did not know how long it had been out, but there was no light on the evening of the accident. That the north side of Landsdowne, leading from Second to Third street, was much traveled by pedestrians. That on the south side of Landsdowne, from Main to Second street, there was a graveled sidewalk, used by people as a regular travelway.

Mrs. Kausler testified that she did not know respondent prior to the accident, but saw her the first time when she (witness) got out of the car on that night. It was dark and she could hear respondent crying out, trying to get out of the ditch and screaming. Witness estimated that the ditch was about 3 feet deep and about 3 feet wide, and that the hole into which respondent fell was about one foot from the pathway. That the light in that vicinity had been removed more than a year previous. That she went down to the doctor's office at the time Mr. and Mrs. Stroupe and another man arrived. Witness noticed that the rain had washed out the place into which respondent fell. That she passed this place about once a week, but she went up the middle of the street to keep from falling into the holes. That after the accident the ditch was filled up.

George Roupe, another witness, said that he had lived in De Soto about 48 years. That the lights had been turned out in the part of the city where the accident occurred for more than two years. That he had noticed the ditch and the path along the north side of Landsdowne. It was an open ditch and never had any guard around it or any covering on the top of it.

Barney Schubel testified that he had been a surveyor for ten years. That the sidewalk on the north side of Landsdowne between Second and Third streets was 3 feet wide, with a ditch along the north side from Second to Third streets. That the south line of the pathway between Second and Third streets to the edge of the ditch was about one foot. That a barrier or railing could have been placed over or around the excavation.

F. D. Wall said he was and had been the...