Waldmann v. Skrainka Construction Company
| Citation | 233 S.W. 242,289 Mo. 622 |
| Parties | CARRIE WALDMANN, Appellant, v. SKRAINKA CONSTRUCTION COMPANY |
| Decision Date | 23 July 1921 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. Frank Landwehr Judge.
Affirmed.
Sale & Frey for appellant.
(1) Any person, and particularly a contractor who creates an excavation in a public highway, is bound at common law to keep such place so guarded and in such a condition that pedestrians using the highway will not be injured. Williamson v. Mullins, 180 S.W. 395; McDonald v Transit Co., 108 Mo.App. 374; Wiggins v. St Louis, 135 Mo. 566. It makes no difference whether the pedestrian falls into the excavation or is injured in stepping out of it. Louisville v. Nicholls, 165 S.W. 660; Bowman v. Ogden City, 33 Utah 196, 93 P. 561; Asher v. City of Council Bluffs, 164 Iowa 661. This duty was declared very definitely in City Ordinance 1139 of the Revised Code of St. Louis, introduced in evidence. Schlinski v. City of St. Joseph, 170 Mo.App. 380; Ryan v. Kansas City, 232 Mo. 471. Where there is a danger light in an excavation out towards the street where the natural inference would be that it was placed there to warn the drivers of wagons not to drive in an alley which was being made, it cannot be said to be a warning to pedestrians not to use the excavation. Such a light was neither proper at the common law nor under the ordinance. Schlinski v. City of St. Joseph, 170 Mo.App. 380. (2) The fact that plaintiff knew of the excavation does not charge her with contributory negligence as a matter of law, since she did not fall into the excavation, but sustained her injuries in getting out of the excavation. She had passed over the excavation to the north in safety earlier in the same evening and she had a right to assume, therefore, that the sidewalk was safe when she returned, going to the south. The question of contributory negligence in such character of cases is always one for the jury. Devlin v. City of St. Louis, 252 Mo. 203; Loftis v. Kansas City, 156 Mo.App. 683; Willis v. St. Joseph, 184 Mo.App. 428; Bar v. Kansas City, 105 Mo. 550. One need not abandon a convenient method of travel in a public street because of a danger unless the use of the street, under the circumstances, is absolutely inconsistent with ordinary care and the mere fact of the knowledge of the danger is not sufficient to defeat the right of recovery. Bentley v. Hat Co., 144 Mo.App. 612; Tockstein v. Bimmerly, 150 Mo.App. 491.
M. N. Hayden and John P. Griffin for respondent.
(1) There is no reversible error in this record for the reason that appellant is not entitled to recover upon any theory of negligence alleged. First, there is a failure of proof of (a) negligence on the part of respondent and (b) any causal connection between any of the negligence alleged and appellant's injury, and, secondly, the evidence of appellant herself establishes beyond question that her injury resulted wholly from her own negligence in failing to raise her foot high enough to reach the sidewalk, as she attempted to step upon it. She knew that she had to step up out of the alley to the sidewalk, but she, nevertheless, permitted her foot to strike against the edge of the sidewalk, thereby causing her to fall. She herself says that the projecting piece of the edge of the sidewalk, about which so much complaint is made, came in contact with her foot at the instep. Necessarily, therefore, a portion of her foot must have gone under, instead of over, the edge of the sidewalk. That situation resulted from her act. As a matter of law, she was guilty of negligence proximately causing her injury and the trial court should have so held. Not being entitled to have her case submitted to the jury at all, and the verdict having been in favor of respondent, there can be no errors, either in instructions or in the admission of evidence offered by respondent, warranting a reversal of this judgment. (a) This court has the power to reverse this judgment only in the event that it believes that error was committed by the trial court "materially affecting the merits of the action." R. S. 1919, sec. 1513; Freeland v. Williamson, 220 Mo. 217, 229; Mann v. Doerr, 222 Mo. 1, 15; Moore v. L. Ry. Co., 176 Mo. 528, 545; Mockowik v. Railroad Co., 196 Mo. 550, 568. (b) If the record discloses that the evidence offered by plaintiff wholly failed to establish that she is entitled to recover or entitled to have her case submitted to the jury at all, then the verdict of the jury having been in favor of defendant, there can be no error in any instructions given at the instance of the respondent which can be held to be reversible error. Wagner v. Elec. Co., 177 Mo. 44, 60; Bradley v. Tea Co., 213 Mo. 320; Trainer v. Mining Co., 243 Mo. 359, 371; Shinn v. Railroad Co., 248 Mo. 173, 181; Shelton v. Light Co., 258 Mo. 538; Boesel v. Express Co., 260 Mo. 453; Moore v. L. Ry. Co., 176 Mo. 528, 545; Mockowik v. Railroad Co., 196 Mo. 550, 568; Schuepbach v. Gas Co., 232 Mo. 603, 611; Putnam v. Boyer, 173 Mo.App. 394, 401; Lomax v. Ry. Co., 119 Mo.App. 192; Chapman v. Railroad, 240 Mo. 592, 601. (c) A judgment will not be reversed where the right result was reached, though the record may show that the proceedings were irregular, or, perhaps, erroneous. Mockowik v. Railroad Co., 196 Mo. 550, 568; Peterson v. Transit Co., 199 Mo. 331, 344. (d) The error which, it is alleged, inheres in an instruction, must be prejudicial in order to warrant a reversal of the judgment. Mockowik v. Railroad Co., 196 Mo. 550, 568; Bradford v. Ry. Co., 136 Mo.App. 705, 711; Perry v. Van Matre, 176 Mo.App. 100. (e) Where the verdict of a jury is clearly for the right party it should be upheld, even if there should be error in the giving of instructions. Fritz v. Railroad, 243 Mo. 69; Trainer v. Mining Co., 243 Mo. 359; Quinn v. Railroad, 218 Mo. 561.
Graves, J., concurs in separate opinion in which Blair, C. J., concurs.
Appeal from the Circuit Court of the City of St. Louis.
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 ten inches deep, that is, ten inches below the surface of the granitoid sidewalk, fifteen feet wide (the width of the alley), and about twelve to fifteen 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 ten 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 ten-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 four or five 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 twelve specifications of negligence in the petition: 1st and 2nd 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; 3rd and 4th, 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; 5th, that said excavation rendered said sidewalk dangerous to pedestrians at night; 6th and 7th, that defendant failed to provide an adequate covering for or temporary walk across said excavation; 8th, 9th and 10th, that defen...
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