Vonkey v. City of St. Louis

• Decision Date: 31 March 1909
• Parties: VONKEY v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

117 S.W. 733

219 Mo. 37

VONKEY v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

1. EVIDENCE (§ 10)—JUDICIAL NOTICE—GEOGRAPHICAL FACTS.

Neither the trial court nor the court on appeal can take judicial notice of the existence of streets in municipalities.

2. MUNICIPAL CORPORATIONS (§ 771)—DEFECTIVE SIDEWALKS—INJURIES TO PEDESTRIANS —LIABILITY.

Where the unsafe condition of a street was occasioned by the sudden freezing at night of the snow and slush thereon, the city was not liable for injuries to a pedestrian, occurring about noon the following day, by slipping on the sidewalk.

3. MUNICIPAL CORPORATIONS (§ 771)—DEFECTIVE SIDEWALKS—INJURIES TO PEDESTRIANS —LIABILITY.

A pedestrian slipped on the ice on a sidewalk and was injured. Three or four days before, snow fell, followed by rain, rendering the sidewalk slushy. On the night before, a general freeze occurred, rendering the sidewalks slippery in places and uneven. Held, that the city was not liable.

Valliant, J., dissenting in part.

Appeal from St. Louis Circuit Court.

Action by Elizabeth Vonkey against the City of St. Louis. From a judgment refusing to set aside a nonsuit, plaintiff appeals. Affirmed.

Thomas Morris and Ed. L. Gottschalk, for appellant. Chas. W. Bates and Charles P. Williams, for respondent.

GRAVES, J.

Plaintiff brought this action to recover the sum of $10,000 for injuries alleged to have been caused by falling upon an icy sidewalk. She alleged notice of the condition upon the part of the city, and, further, that said condition had existed for such length of time that the city, in the exercise of ordinary care, could have known of the condition of said walk in time to have remedied the same prior to her injuries. The material portions of her petition are:

"Plaintiff states that on the 15th day of December, A. D. 1904, she had occasion to leave her house at 2906 Pine street to transact some business; that in returning from her business she came from Washington avenue to Ewing avenue, or Twenty-Ninth street; that there was snow and ice on the sidewalk on the west side of said Ewing avenue or Twenty-Ninth street, between Washington avenue and Locust street; that said snow and ice on the sidewalks on west side of said Ewing avenue or Twenty-Ninth street was rough and uneven and in ridges, and in an unsafe and dangerous condition to pedestrians traveling thereon, and that said snow and ice was in the said dangerous condition to pedestrians traveling thereon for several days prior to the 15th day of December, A. D. 1904. * * *

"Plaintiff states that on said 15th day of December, A. D. 1904, at or about noon of the same day, she was walking on the west side of the sidewalk on Ewing avenue or Twenty-Ninth street between Washington avenue and Locust street, and exercising reasonable care in going to her residence south on Pine street, when she reached a point or place on said sidewalk on the west side of said Ewing avenue or Twenty-ninth street, about 100 feet north of Locust street, and about 20 feet south of the alley midway between Washington avenue and Locust street, and owing to the rough, rugged, and uneven and dangerous surface of the said sidewalk at said point or place, caused by the snow and ice that had prior thereto fallen and had been permitted to accumulate and remain on the said sidewalk by the defendant corporation's officers, agents, and servants in a rough, rugged, uneven, and dangerous condition, she slipped and fell, striking upon her right side with great force on the said sidewalk, and thereby, and by reason of the said fall, breaking the small bone of her right arm above and between the wrist and elbow, and wrenching and spraining the wrist of the right hand."

The answer of the city was a general denial, and a plea of contributory negligence. Reply general denial.

At the close of the plaintiff's case the trial court sustained a demurrer to the testimony, whereupon the plaintiff was forced to and did take a nonsuit. This nonsuit the court, upon timely motion made by plaintiff, refused to set aside, and thereupon the cause was by her appealed to this court.

From the evidence it appears that the accident occurred upon Thursday, just about noon. The case had been tried nisi prior to this trial, at which time the plaintiff evidently testified that the place where she fell was extremely smooth and slippery. In this testimony she explained that she was mistaken in the use of the preposition "on" for the preposition "by," as Germans frequently mix these words. In this trial she says that in the center of the sidewalk was a long, smooth, slippery place, and that to the side thereof it was rough, and she took the side of the sidewalk, because she thought it safer. She also says that Thursday was a nice day, and the snow and ice had melted some, so as to make it slippery, and that in walking on the rough snow and ice on the side of the walk her foot slipped into a hole of some kind, and she fell onto this long, smooth portion in the center. From her evidence it appears that there was a general snow which fell either Sunday night or Monday night; that it was cold the day after the snow; that the snow was four or five inches deep, or more; that the day before the accident it rained so as to melt the snow; that the night before the accident at noon of the next day the snow and ice on the sidewalks froze hard; that the roughness in the snow and ice was occasioned by the footprints of travelers who had gone along before this freeze; that the frozen snow and ice at the place of accident was four or five inches deep. Two young ladies picked the plaintiff up just after her fall, and the roughness of the snow and ice at the point of the accident is by them described as being occasioned by the footprints of travelers on the walk. The testimony shows that the accident occurred on Ewing avenue at a point between Washington avenue and Locust street, at about the point named in the petition. The character of plaintiff's injuries need not be stated further than what the petition charges, as above set out. Such, in subtsance, are the facts of the case.

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