Walters v. Markwardt

• Decision Date: 12 March 1951
• Docket Number: No. 1,No. 42051,42051,1
• Citation: 361 Mo. 936,237 S.W.2d 177
• Parties: WALTERS v. MARKWARDT et al
• Court: Missouri Supreme Court

Page 177

237 S.W.2d 177

361 Mo. 936

WALTERS v. MARKWARDT et al.

No. 42051.

Supreme Court of Missouri, Division No. 1.

March 12, 1951.

Norman, Foulke & Warten, Joplin, for appellant.

Watson, Richart & Titus, Ray E. Watson, F. H. Richart, and Rex Titus, all of Joplin, for respondents William Markwardt and Blanche Markwardt.

Clarence T. Craig, Bond & Bond, Ray Bond and John S. Bond, all of Joplin, for respondent Crockett Oil Co.

Orval Jewett, Joplin, for respondent F. H. Stites.

HYDE, Judge.

Action for $10,000.00 damages for personal injuries. Defendants filed separate motions to dismiss, on the ground that plaintiff's amended petition failed to state a claim upon which relief could be granted, which were sustained. Plaintiff refused to plead further and has appealed from the judgment of dismissal.

The petition alleged that defendants, William C. and Blanche Markwardt owned certain real estate in Joplin leased to defendant Crocket Oil and that defendant Stites was in physical possession of the premises operating a filling station thereon under an oral agreement with the Oil Company. Other material allegations of the petition are set out in plaintiff's brief, as follows:

'That on June 25, 1949, and for many years past, the north side of the premises in question, extending from the filling station building to the street line and to the north property line had been made into and was a driveway and walkway, with the surface thereof prepared and graveled to facilitate its use as a driveway and walkway and was much used by the public in general for many years to enter upon said premises and premises adjacent thereto.

'That on said date, and for many years past, there was located either within the limits of said driveway and walkway or in such proximity thereto as to render traveling thereon dangerous, an open pit about three feet in width and 20 feet in iength and about 6 feet in depth, constructed of concrete, level with the surface of said driveway, without guard rails or lights.

'That said pit was a nuisance because of the inherently dangerous character of its construction and location; that the respondents Markwardts, as owners of the land, the respondent Crockett Oil Company, as lessee in constructive possession, and the respondent T. H. Stites, as tenant in actual possession under the Crockett Oil Company, were under a duty to take such steps as were necessary to prevent injury to the public by the said nuisance or to abate the same.

'That on June 25, 1949, and after sundown, the plaintiff walked along said pathway toward the public restroom on said premises, and in the darkness stepped into and fell to the bottom of said pit, inflicting upon plaintiff injuries as set out in the amended petition to plaintiff's damage in the sum of $10,000.00 for which he seeks judgment.'

Plaintiff relies on A.L.I. Restatement of Torts, Sec. 367, which is as follows: 'A possessor of land who so maintains a part thereof that he knows or should know that others will reasonably believe it to be public highway, is subject to liability for bodily harm caused to them while using such part as a highway, by his failure to exercise reasonable care to maintain it in a reasonably safe condition for travel.'

Plaintiff also relies on Cooper v. Davis, 310 Mo. 629, 276 S.W. 54, 57, where defendant railroad had on its right of way a platform of boards over a ditch, adjacent to a public sidewalk. The public used this platform as a short cut from the sidewalk to defendant's station platform. There were no guard rails at the ditch, either along the sidewalk or on the board platform. Plaintiff was injured by falling from the board platform into the ditch. In holding defendant liable we said: 'The extension of the walk was not on the ground dedicated to the public as a street, but on the ground of the defendant. In extending the walk the defendant owed the duty to exercise ordinary care to make it reasonably safe to persons using it, or who came upon it in going to defendant's station as invitees. The defendant had the right to maintain the ditch thus next to or intersecting the sidewalk, or next to the extension, but, in doing so, it was under the duty to so guard it as to render it secure for persons using the sidewalk or using the extension which defendant provided, and this duty is not...