Waldmann v. Skrainka Const. Co.

• Decision Date: 11 July 1921
• Docket Number: No. 22073.,22073.
• Citation: 233 S.W. 242,289 Mo. 622
• Parties: WALDMANN v. SLRAOMLA CONST. CO.
• Court: Missouri Supreme Court

233 S.W. 242

289 Mo. 622

WALDMANN v. SLRAOMLA CONST. CO.

No. 22073.

Supreme Court of Missouri, Division No. 1.

July 11, 1921.

Motion for Rehearing and Motion to Transfer to Court in Banc Denied July 23, 1921.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Suit by Carrie Waldmann against the Skrainka Construction Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Sale & Frey, of St. Louis, for appellant.

M. U. Hayden and John P. Griffin, both of St. Louis, for respondent.

SMALL, C.

I. Suit for personal injuries. The substantial facts`are: The defendant contracted with the city of St. Louis to pave and for that purpose to take out the necessary subgrade of an alley between Wells and Ridge avenues in said city, and which intersected or opened into Hamilton avenue on the west side of and terminated at said Hamilton avenue. Hamilton avenue ran north and south, and said alley east and west, thus entering Hamilton avenue at right angles. Prior to the commencement of the work by defendant, the granitoid sidewalk on the west side of Hamilton avenue was continuous between Wells and Ridge avenues, and ran across the mouth of the alley. The defendant's work contemplated grading and paving the entrance into the alley from the west side of Hamilton avenue so that teams and vehicles would have egress and ingress to and from the alley into said avenue. This required the cutting away and removal of the sidewalk and curb where they crossed the mouth of the alley, and the excavating of the subgrade of the approach, which work had been completed at the time plaintiff was injured, to wit, on the night of July 7, 1918. The excavation thus made was 10 inches deep —that is, 10 inches below the surface of the granitoid sidewalk—15 feet wide, the width of the alley, and about 12 to 15 feet long, the distance from the curb to the property line. The granitoid sidewalk was cut across, east and west, along the line of the excavation, and its edges were left exposed and were part of the north and south sides of the excavation. The plaintiff, a married lady of mature years, living in the neighborhood, passed over the excavation in safety without difficulty in walking north on the sidewalk, just before dark, on the evening of her injury, in going to a picture show. After the picture show, she started to return to her home the same route, going south on the same sidewalk, accompanied by her maid, whom she had met at the show. This was about 10 o'clock at night. When they reached the excavation, the maid, walking just in front of plaintiff, crossed over in safety. The plaintiff; following immediately behind, stepped down into the excavation and walked across it to the south side, without any difficulty. But, as she undertook to step up the 10-inch rise on the south side, her foot caught, she says, on a projection from the edge of the granitoid walk, and she was thrown to the sidewalk and injured. There was no fence around or about the work. There was one red light in the center of the excavation near the curb line. The granitoid walk was six feet wide, and there was an unpaved parkway about 4 or 5 feet wide between the north line of the walk and the curb. There was no other light or lantern on the work.

The petition charged that, as plaintiff was stepping up on the south side of said excavation, due to defendant's negligence, as specified in the petition, she fell on the hard granitoid sidewalk and was injured. There were 12 specifications of negligence in the petition: (1) and (2) That in cutting the granitoid sidewalk the defendant left the edge thereof in a rough and jagged condition, which rendered said sidewalk dangerous to pedestrians; (3) and (4) that it was dark at the time plaintiff was injured, and defendant negligently failed to provide adequate light, that the one lantern which defendant had provided was burning very low and had bricks around it, and that thereby plaintiff could not see her way; (5) that said excavation rendered said sidewalk dangerous to pedestrians at night; (6) and (7) that defendant failed to provide an adequate covering for or temporary walk across said excavation; (8), (9), and (10) that defendant failed to warn pedestrians of their danger, failed to provide a watchman at said excavation, and failed to provide a proper step from the base thereof to the granitoid sidewalk, so that pedestrians could step with greater safety to the sidewalk therefrom; (11) and (12) that defendant failed to fence off said excavation with a substantial fence, and that the revised ordinances of said city required it to be fenced with such a fence not less than 3 feet high and two red lights securely and conspicuously posted on or near said excavation.

Besides a general denial, the answer pleaded contributory negligence.

Substantially all of the plaintiff's witnesses testified that there was a red light in the center of the excavation about the curb line. This red light had some bricks around it, which one of plaintiff's witnesses said was usual to keep the lamp from being overturned. There was no other light and no fence or guard around the work.

Touching the condition of the excavation, and especially the edge of the granitoid sidewalk on the south side, two witnesses who were city employees and inspectors on the job, and one civil engineer, testified for plaintiff, in substance, as follows: That one cornet' of the granitoid walk—the corner nearest the street—was broken off in a semicircular form, and about 7 inches across; that the edge of the sidewalk was cut off reasonably straight except at this corner where it was broken. One of them said that it was as straight as you could break concrete. It was chipped a little, but not very much. It was cut just as evenly as it was possible to cut out concrete. Unless you hit an expansion joint and have to cut through the center of the slab, you will have a ragged edge. It was a very good job. It was as good as you could get in concrete. It was kind of like a saw tooth. The civil engineer saw the work after it was completed, but he could see the line where the sidewalk had been cut. It was a saw-tooth edge. The irregularities or projections were from one-eighth to three-eighths of an inch in length; could not say how far apart they were.

A lay witness who saw the work the next morning testified for plaintiff: That the edge of the sidewalk on the south side of the alley was not finished at all, kind of sawed; that a corner of the walk towards the street was broken off; that he ran across the street the night before when plaintiff was injured, and saw her lying on the sidewalk on the south side of the excavation, near this broken piece. He did not describe the extent of the broken piece or size of the projections which made it "kind of sawed."

The plaintiff's maid testified for plaintiff: That she walked in front of plaintiff, crossed the excavation all right herself, but plaintiff did not get up and out of the excavation on the south side; that plaintiff fell while attempting to do so, and the witness turned around, and plaintiff was lying over to the east side of the sidewalk with her legs hanging down in the alley. Her leg was on a broken thing. Witness felt of a piece of broken-off sidewalk. It was kind of pointed; it would stick in your hands when you would touch it. After plaintiff fell, witness felt of this sidewalk, and plaintiff's foot at the time was on top of the projection. Both the maid and the said lay witness marked a point on a photograph in evidence right over the broken-off corner as the place they say plaintiff's foot was when they first saw her after the accident.

Plaintiff testified in her own behalf substantially as follows:

She crossed the alley going to the picture show in safety. She went there alone and came back with her maid; walked back on the same side of Hamilton Avenue. She came to this alley, stepped down into it, and crossed over to the south side. "When I got to the other (south) side; as I wanted to step my foot caught on a piece of sharp point of the concrete, and I fell forward. There was a red light there near the street. There were bricks around it. It was low down in the ground. You couldn't hardly see it; could not see where to step down from the north side into the alley. It was dark. It was awfully dark there. My foot caught, and I fell as I went to step out on the south side of the alley. It was Sunday night, about 10:30. The maid was right in front of me. It was near the street where I fell. Just as I stepped off there was a sharp point sticking out and it threw me over."

On cross-examination she said:

"It was not quite dark when I went to the picture show. I could see that the alley was being constructed when I got there. I stepped down into the alley, walked across it and then stepped up on the sidewalk on the north side going to the theater. Came back the same way. Stepped down from the sidewalk, coming back into the alley from the north side. Had no difficulty; stepped down there all right. Q. You could see that you had arrived at that alley? A. No, sir; it was dark; I could hardly see. Of course, I knew the alley was there, and stepped down into it from the north side, without falling or missing my footing at all, and walked safely across to the south side. I fell when I went to step up from the alley to the sidewalk on the south side. My maid was walking in front of me. She stepped up on the sidewalk on the south side of the alley in front of me. She was on the sidewalk on the south side, when I fell. Did not see the lamp. When I fell it was back of me. Don't remember when I first saw the lamp. I know it was there. I believe I saw it when I went over. It was in the middle of the alley. It was dark. It was not light enough to see the light. I don't believe I did see it there. I believe it was about the middle of the alley. I saw the bricks around it when I went. I knew, when I came hack,...