Vonkey v. City of St. Louis

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

117 S.W. 733

219 Mo. 37

ELIZABETH VONKEY, Appellant, v. CITY OF ST. LOUIS

Supreme Court of Missouri, First Division

March 31, 1909

Appeal from St. Louis City Circuit Court. -- Hon. Jesse A. McDonald Judge.

Affirmed.

Thomas Morris for appellant; Ed. L. Gottschalk of counsel.

(1) The question of reasonable time is sometimes one of fact and sometimes one of law. In this case we contend it was a question of fact, and should have been submitted to the jury. Randolph v. Frick, 57 Mo.App. 400; Bratner v Powder Co., 100 S.W. 1000; Russell v. Columbia, 74 Mo. 480; Heberling v. Warrensburg, 103 S.W. 36; Hunt v. Railroad, 103 S.W. 1088; Mayes v Palmeo, 103 S.W. 1141; Carvin v. St. Louis, 151 Mo. 334; Beauvais v. St. Louis, 169 Mo. 500. As to reasonable time for repair. Fullerton v. Fordyce, 144 Mo. 520. In relation to the duty of the city to keep the sidewalks in a reasonably safe condition, and that snow congealed, rugged and in ruts on the sidewalk, is a nuisance and dangerous to pedestrians. Norton v. St. Louis, 97 Mo. 537; Womach v. St. Louis, 168 Mo. 236; Perrigo v. St. Louis, 185 Mo. 286; Connor v. Nevada, 188 Mo. 148; Ford v. Kansas City, 79 S.W. 925; Blackwell v. Hill, 76 Mo.App. 46. (2) A demurrer to the evidence should not be sustained if there is sufficient evidence to take a case to the jury. Reno v. St. Joseph, 169 Mo. 342; Cook v. Railroad, 94 Mo.App. 417. (3) Where the evidence is of such a character that ordinary men may differ as to the conclusion to be drawn therefrom, the court is not authorized to withdraw the issue to which it relates, or withhold it from the consideration of the jury. Railroad v. Dempsey, 89 S.W. 786; Sanders v. Houston, 91 S.W. 245; Gulf, etc., Co. v. Matthews, 89 S.W. 983; Culberson v. City of Maryville, 67 Mo.App. 343; Perrigo v. St. Louis, 185 Mo. 274; Graney v. St. Louis, 141 Mo. 180. Where the evidence as to a matter of fact is conflicting there is a question for the jury and not for the court. James v. Kansas City, 85 Mo.App. 20; Perrette v. Kansas City, 62 Mo. 238; Errickson v. Kansas City, etc., 171 Mo. 647. Where there is any substantial evidence, though slight, whether direct or inferential, tending to establish the matters in issue, the issue must be submitted to the jury. Knapp v. Hanley, 108 Mo.App. 353; Story v. Railroad, 108 Mo.App. 424; Montgomery v. Railroad, 181 Mo. 477.

Charles W. Bates and Charles P. Williams for respondent.

(1) Negligence of the city will not be presumed; it must be shown. Lawson on Presumptive Evidence (2 Ed.), p. 121, rule 19a. (2) Plaintiff cannot allege one ground of negligence and recover on another. Hesselbach v. St. Louis, 179 Mo. 524; Coyne v. Railroad, 121 Mo.App. 114; Edens v. Railroad, 72 Mo. 212. (3) The city is not liable for the mere slipperiness of snow or ice where such a condition is general. It must amount to an obstruction at the particular place complained of. Reno v. St. Joseph, 169 Mo. 642; Warren v. Independence, 153 Mo. 593; Quinlan v. Kansas City, 104 Mo.App. 616. (4) There is not a particle of evidence to show how long the alleged obstruction had existed. On this ground alone the nonsuit was proper. (5) The city cannot help snow freezing as it falls upon the walks and turning to ice. It cannot get up three or four inches of ice from granitoid or brick sidewalks, in freezing weather, with anything less than pickaxes or dynamite. It ought not to be required to use these. Taylor v. Yonkers, 105 N.Y. 206; Hyer v. Janesville, 101 Wis. 371. (6) The city ought not to be held liable for slush that freezes in a sudden cold snap; the obstruction does not exist until the freeze, and the city has not had a reasonable time to remove. Harrington v. Buffalo, 121 N.Y. 147; Hyer v. Janesville, 101 Wis. 171; McNally v. Cohoes, 127 N.Y. 350.

GRAVES, J. Valliant, J., concurs in the result, and all the opinion except paragraph one, to which paragraph he does not agree.

OPINION

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 the 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 one hundred feet north of Locust street, and about twenty 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 substance are the facts of the case.

I. There are at least two good reasons for sustaining the action of the trial court in this cause. In the first place, there are three streets mentioned in the evidence, to-wit, Ewing avenue, Washington avenue and Locust street, as being at or near the locus of the accident. One witness, Fraudenstein, testified:

"I am in the laundry business, 2907 Pine street. I have lived for about thirty-five years. I know the locality of Ewing, between Washington avenue and Locust street. It has asphaltum on the street. I know it to be a street at least twenty-five years."

This is all we find in the entire record as to whether or not these streets are in the city of St. Louis, or that the accident occurred within the corporate limits of the city of St. Louis. Counsel for plaintiff seems to have proceeded upon the theory that not only the lawyers engaged in the case knew that the streets were in the city of St Louis, and therefore the accident occurred in said city, but further that both the trial court and this...