Walsh v. City of St. Louis

• Decision Date: 23 July 1940
• Docket Number: 36605
• Parties: Edward J. Walsh v. City of St. Louis, a Municipal Corporation, Appellant
• Court: Missouri Supreme Court

142 S.W.2d 465

346 Mo. 571

Edward J. Walsh v. City of St. Louis, a Municipal Corporation, Appellant

No. 36605

Supreme Court of Missouri

July 23, 1940

Appeal from Circuit Court of City of St. Louis; Hon. John W Joynt, Judge.

Affirmed.

Edgar H. Wayman and Jerome Simon for City of St. Louis.

(1) It is essential to plaintiff's cause of action to prove compliance with Section 7493, Revised Statutes 1929 regarding notice of accident. Sec. 7493, R. S. 1929; Cole v. St. Joseph, 50 S.W.2d 623; Shuff v. Kansas City, 257 S.W. 844; Kling v. Kansas City, 61 S.W.2d 411, 227 Mo.App. 1248; Rice v. Kansas City, 16 S.W.2d 659; Reid v. Kansas City, 192 S.W. 1047. (a) A municipality is not liable for injury resulting soley from a general condition of snow and ice where the condition complained of was not known to be unusual or unusually dangerous. Reedy v. St. Louis Brewing Assn. and City of St. Louis, 161 Mo. 523; Vonkey v. St. Louis, 219 Mo. 37; Albritton v. Kansas City, 192 Mo.App. 574, 188 S.W. 239; Armstrong v. Monett, 228 S.W. 771; Gist v. St. Joseph, 220 S.W. 722; Coy v. Kansas City, 243 S.W. 418; 25 Amer. Juris., p. 796; 13 R. C. L., p. 413; 7 McQuillin on Municipal Corp., p. 192; Broburg v. Des Moines, 63 Iowa 523; Huston v. Council Bluffs, 101 Iowa 33; Hyer v. Janesville, 101 Wis. 371, 77 N.W. 729; Jefferson v. Sault Ste. Marie, 166 Mich. 340; Johnson v. Evansville, 180 N.E. 600; Graham v. Chicago, 346 Ill. 638, 178 N.E. 911; Chase v. Cleveland, 44 Ohio St. 505; Kohler v. Penn. Tp., 305 Pa. 330, 157 A. 681; O'Donnell v. Butte, 65 Mont. 463, 211 P. 190; Wilson v. Idaho Falls, 17 Idaho 425, 105 P. 1057; Evans v. Concordia, 74 Kan. 70. (2) The giving of plaintiff's main Instruction 1, which purported to cover the entire case and directed a verdict for plaintiff, was error. (a) This instruction was erroneous because it did not require the jury to find that an obstruction or an unsafe condition had existed sufficiently long to give notice to the city. (b) This instruction was erroneous because it did not tell the jury that the city was entitled to a reasonable time after notice of a dangerous condition to remedy the condition. Allen v. Kansas City, 64 S.W.2d 766; Pearce v. Kansas City, 156 Mo.App. 230, 137 S.W. 629; Quinlan v. Kansas City, 104 Mo.App. 618; Albritton v. Kansas City, 192 Mo.App. 574; Studer v. St. Joseph, 185 S.W. 1196; McMahon v. Greenspon's Sons Iron & Steel Co., 267 S.W. 83; Wilson v. St. Joseph, 139 Mo.App. 564. (c) This instruction was erroneous because it was a comment on an isolated portion of the evidence and tended to confuse and mislead the jury by giving them an improper standard by which to determine negligence. Suttmoeller v. St. Louis, 230 S.W. 67; Anderson v. Kincheloe, 30 Mo. 520; Meyer v. Pacific Railroad, 40 Mo. 151; Fine v. St. Louis Pub. Schools, 39 Mo. 59; Jones v. Jones, 57 Mo. 138; Gibler v. Railroad, 129 Mo.App. 93; Zumwalt v. C. & A. Ry. Co., 266 S.W. 717; C. I. T. Corp., v. Hume, 48 S.W.2d 154; Griffith v. Walesby, 91 S.W.2d 232. (d) An instruction which submits an issue to the jury which is not proven is erroneous. Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 1; Clarke v. Jackson, 116 S.W.2d 122; State ex rel. Banks v. Hostetter, 125 S.W.2d 835. (3) The verdict of the jury is excessive. Osby v. Tarlton, 85 S.W.2d 27, 336 Mo. 1240; Thompson v. Smith, 253 S.W. 1023; Ruppel v. Clayes, 72 S.W.2d 833.

Al. F. Gerritzen and Henry J. Mueller for respondent.

(1) Timely notice of the accident was given by the plaintiff to the mayor of the city of St. Louis, as required by Section 7493, Revised Statutes 1929. Appellant's counsel, in the presence of the court and jury, admitted that notice was served on the mayor's secretary within the ninety-day period. (a) Proof of service of the notice required by Section 7493, Revised Statutes 1929, made on the mayor's secretary or the assistant city counselor is sufficient. Powers v. Kansas City, 18 S.W.2d 545; Peterson v. Kansas City, 23 S.W.2d 1045; Callahan v. Kansas City, 41 S.W.2d 894. (b) Admissions by counsel obviate the necessity of further proof on the subject matter of such admissions. Appellant, by counsel, having admitted the service of the notice required by Section 7493, Revised Statutes 1929, is estopped from asserting on appeal that no notice was served, or that there was not sufficient evidence as to the giving of said notice within the ninety-day period. Callahan v. Kansas City, 41 S.W.2d 896; Cole v. St. L.-S. F. Ry. Co., 61 S.W.2d 344, 332 Mo. 999; West v. West, 110 S.W.2d 398; Reutner Klaus & Co. v. Nelson Chesman Co., 9 S.W.2d 655; Schroeder v. Stadley, 261 S.W. 934; Pratt v. Conway, 49 S.W. 1028, 148 Mo. 291; Everett v. Marston, 85 S.W. 540, 186 Mo. 587. (c) Municipality is required to exercise ordinary care to keep its sidewalks in a reasonably safe condition, and is liable to one who, while properly using said sidewalks, suffers injury in consequence of an accumulation of rough and uneven ice, where such accumulation had been permitted to remain on said sidewalk for a longer period of time than on sidewalks generally throughout the city, and for such length of time so that the city could have removed it, and when such accumulation of rough and uneven ice rendered said sidewalk "not reasonably safe for travel." Barrett v. Canton, 338 Mo. 1082, 93 S.W.2d 930; Wood v. St. Joseph, 44 S.W.2d 249; Harding v. St. Joseph, 7 S.W.2d 710; Reno v. St. Joseph, 70 S.W. 126, 169 Mo. 642; Barker v. City of Jefferson, 155 Mo.App. 390, 137 S.W. 10; Quarles v. Kansas City, 138 Mo.App. 45, 119 S.W. 1019; Wolf v. Kansas City, 296 Mo. 95, 246 S.W. 236; Jackson v. Kansas City, 181 Mo.App. 178, 167 S.W. 1150; Squiers v. Kansas City, 75 S.W. 194, 100 Mo.App. 628. (2) The giving of plaintiff's main Instruction 1, which purported to cover the whole case and directed a verdict for plaintiff, was not erroneous, because it submitted to the jury every necessary element under the law and the evidence. Barrett v. Canton, 338 Mo. 1082, 93 S.W.2d 930; Snowden v. St. Joseph, 163 Mo.App. 667, 147 S.W. 494; Rice v. Kansas City, 16 S.W.2d 663; Squiers v. Kansas City, 75 S.W. 194, 100 Mo.App. 628. (3) Plaintiff's Instruction 1, purporting to cover the whole case, was not erroneous, because it did require the jury to find that the city had reasonable time after constructive notice, and before February 17, 1936, to have removed the ice from said sidewalk. Quinlan v. Kansas City, 104 Mo.App. 616, 78 S.W. 660; Acker v. Kansas City, 104 S.W.2d 1058; Wolf v. Kansas City, 296 Mo. 95, 246 S.W. 236; Drimmel v. Kansas City, 168 S.W. 285, 180 Mo.App. 339; Scanlan v. Kansas City, 19 S.W.2d 526; Wright v. Kansas City, 86 S.W. 456. (a) Plaintiff's Instruction 1, which purported to cover the whole case, was not erroneous, because there was sufficient proof and evidence in the record by admission of appellant's counsel that the notice required under Section 7493, Revised Statutes 1929, was duly served on the mayor within the ninety-day period. Callahan v. Kansas City, 41 S.W.2d 896; Cole v. St. L.-S. F. Ry. Co., 61 S.W.2d 346, 332 Mo. 999; West v. West, 110 S.W.2d 398; Pratt v. Conway, 49 S.W. 1030, 148 Mo. 291; Everett v. Marston, 85 S.W. 540, 186 Mo. 587; Schoeder v. Stadley, 261 S.W. 935; Reutner, Klaus & Co. v. Nelson Chesman Co., 9 S.W.2d 657.

OPINION

Douglas, J.

Plaintiff recovered a judgment for $ 10,000 for personal injuries resulting from a fall caused by ice on a public sidewalk. The city is charged with negligence in permitting snow and ice to accumulate and remain on the sidewalk resulting in a dangerous condition which caused plaintiff's injuries.

On the morning of February 17, 1936, plaintiff was walking on the north sidewalk of the 3400 block of Rutger Street in St. Louis. The sidewalk was made of cinders. There was no curbing separating it from the street. With the accumulation of ice and snow the boundary of the sidewalk along the street side was indistinguishable. Ice had accumulated and remained on the sidewalk contiguous to a vacant lot for three or four weeks prior to the accident. It was rough and heavy ice. It was formed by the partial thawing in the daytime of the snow which remained there and then its freezing again at night. Being walked over probably caused its roughness. Plaintiff's right heel hit the edge of the ice, caught and threw him. During the preceding month the weather had been extremely cold with brief intermissions. The month of February had been the coldest since 1905. There was snow from time to time so that the ground remained covered. In spite of this condition, sidewalks generally throughout the city had been cleaned preventing accumulations of ice or had been made safe by being sprinkled with ashes.

The chief contention of the city is that its demurrer to the evidence should have been sustained because the condition of the sidewalk was part of a general condition of snow and ice so that the city is not liable. This is the general rule and is based on the practical reason that a city could not remove entirely all the snow and ice from all the sidewalks under such climatic conditions. [Reedy v. St. Louis Brewing Assn. et al., 161 Mo. 523, 61 S.W. 859.]

In the recent case of Barrett v. Town of Canton, 338 Mo 1082, 93 S.W.2d 927, it was held in effect that a city could be held liable for a general condition of snow and ice if the city had a reasonable opportunity to correct the situation. In so holding that case departs from our ruling in the Reedy case and in Vonkey v. St. Louis, 219 Mo. 37, 117 S.W. 733. It cites in support of its holding our decision in Suttmoeller v. City of St. Louis (Mo.), 230 S.W. 67, which we do not believe apposite under the facts because the latter case involved a special condition rather than a general one. In ...