Ward v. City of Portageville

• Decision Date: 16 June 1937
• Docket Number: No. 5766.,5766.
• Citation: 106 S.W.2d 497
• Court: Missouri Court of Appeals
• Parties: WARD v. CITY OF PORTAGEVILLE.

106 S.W.2d 497

WARD v. CITY OF PORTAGEVILLE.

No. 5766.

Springfield Court of Appeals. Missouri.

June 16, 1937.

Appeal from Circuit Court, New Madrid County; James M. Reeves, Judge.

"Not to be published in State Reports."

Action by Ellen Ward against the City of Portageville. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

O. A. Cook, of Portageville, and Ward & Reeves, of Caruthersville, for appellant.

R. F. Baynes, of New Madrid, for respondent.

ALLEN, Presiding Judge.

This suit was instituted in the circuit court of New Madrid county, for personal injury received by plaintiff, by reason of falling on one of the public sidewalks of the City of Portageville. The cause was tried before a jury, resulting in a verdict for the plaintiff, in the sum of $600. Defendant filed its motion for a new trial, which was overruled, and the cause comes to us on appeal by defendant.

Plaintiff's petition alleges that on the 28th day of October, 1935, DeLisle avenue was a public street in the City of Portageville, a city of the fourth class. That the city had constructed and was maintaining a concrete sidewalk along DeLisle avenue in said city, and that the sidewalk was unsafe and in a dangerous condition for persons walking thereon, in that it was unlevel and broken parts of it were sticking up much higher than other parts, and in places had sunk to a considerable extent, making it rough, unsafe, and dangerous to people using it; that the sidewalk had been in such condition for a long period of time previous to plaintiff's injury and a sufficient length of time for the defendant, by the exercise of ordinary care to have discovered same and by the use of ordinary diligence to have repaired same.

The petition further alleges that on said date, while plaintiff was exercising due care for her own safety, by reason of the condition of the sidewalk, she was caused to slip, stumble, and fall, receiving injuries as follows: That one of the bones of her right arm, between the wrist and elbow, was broken and her wrist was severely sprained. That on account of said injuries she had suffered great pain and mental anguish and was compelled to and would be compelled to expend large sums of money for medical aid.

Plaintiff prayed judgment in the sum of $5,000, together with costs.

The answer pleaded a general denial and further pleaded contributory negligence on the part of the plaintiff, in that she knew of the condition of the sidewalk and of the unevenness thereof, if it was uneven, and that sections thereof were sticking up much higher than the other parts of the sidewalk, and that the plaintiff, without looking and without exercising ordinary care for her own safety, fell on said sidewalk.

Plaintiff testified she had lived in the City of Portageville about seven or eight years. That she was sixty-two years of age. That she was in the City of Portageville on the 28th day of October, 1935, and was acquainted with the street that runs by the Charlie Sager property, known as DeLisle avenue. She testified that the sidewalk was all broken and there was a very high place on the sidewalk where she fell. That on the day in question she had been to a funeral at the Baptist Church, which is located on DeLisle street. That after she left the funeral she came down the street, going home, and at the time she fell she was walking on the outer edge of the sidewalk, and that when she stepped on a high place in the sidewalk her foot slipped and she fell. She further stated that at the time she fell she was being very particular where she walked, and where she stepped, because the walk was so bad. That the walk was perhaps 5 inches higher at the place where she fell than at other places, and that the part that was high was broken up and slanting. That as a result of the fall, her arm was broken and was in a cast five weeks. She further testified that her injuries caused her pain, and that she still suffered pain with her arm, and it had not yet fully recovered. That she had trouble getting her clothes on, and that her injuries kept her awake at night.

On cross-examination, she testified that she was familiar with the sidewalk and had passed over it before the accident. When it was pretty weather she would go over this sidewalk, but when it was bad weather she would not. That the last time she went over it, the sidewalk was in the same condition as when she got hurt, and it had been in that condition three or four years. That at the time she fell, because of the condition of the sidewalk, she was watching where she was going. She further testified that she did not stump her toe, but that her foot slipped. She said there were a few wet leaves on the sidewalk and that there had been a shower of rain thirty or forty minutes before she fell. That she did not think the wet leaves on the sidewalk were the entire cause of her foot slipping. That where she fell the sidewalk was "bulged" up. That there were wet leaves there and in other places. That it was the time of year when leaves fall and rains come on them. She further testified that there were not as many leaves where she fell as in other places.

Dr. A. A. Reeder testified as to plaintiff's injuries. From the medical testimony, it would appear that the verdict in favor of the plaintiff was not excessive. The defendant attempted to prove by the plaintiff's doctor that the plaintiff told him what caused her to fall. Dr. Reeder was a little indefinite, but he did testify that the plaintiff told him that the leaves were wet and that she slipped on them and fell. That she told him of the high condition of the sidewalk, and how she came to fall, and that she had slipped on the wet sidewalk, but his recollection was bad as to what she told him about the leaves. He testified that his recollection was that she said the walk was wet, but that in her conversation with him she mentioned the sloping condition of the walk.

Plaintiff further proved by witness Jennie Day that the walk was cupped up and slanting, and that one block of concrete was higher than the rest of the sidewalk, and that the difference in height was something like 4 or 5 inches. She testified that she went to the funeral with the plaintiff, and that as they came back, when plaintiff reached a point in front of the Sager house, she fell, and that it was at this point in the sidewalk that she had previously described, that is where the sidewalk was higher than the other parts of the sidewalk. That just before plaintiff fell she spoke to her and cautioned her that she might slip and fall. That she did not see a great number of leaves at the place of the accident. She testified that plaintiff did not stumble, but that she slipped. She further testified on cross-examination that she would not say whether there were any leaves under plaintiff's foot. She testified that a tree, whose roots had gone under the sidewalk, had caused it to be higher than the rest of the sidewalk, and that the higher place was a foot or a foot and one-half north of the tree. That the plaintiff stepped on the slab which was bowed up higher than the rest of the sidewalk and walked up until she got to the high place and that was where she fell.

There was some question as to where this witness actually placed the point of plaintiff's fall, as to whether or not it was at the high place in the sidewalk or at another point, where there were some wet leaves on the sidewalk. However, from all of the testimony of this witness, on direct and cross-examination, it was a question for the jury to ascertain where the plaintiff sustained her fall.

Mrs. Allie Hughes, on behalf of plaintiff, testified that in front of the Sager property the sidewalk was uprooted by a tree and the right side of the walk, next to where Mrs. Ward fell, would be anyway from 4 to 5 inches higher on that side. That she did not remember any leaves on the sidewalk, but when plaintiff fell she went to where the plaintiff had fallen.

Birdie Bell Rogers testified on behalf of plaintiff that the sidewalk was 4 to 5 inches higher on one side than it was on the other, and was slanting. She further testified that it had been that way for approximately two years. That the sidewalk is regularly used by pedestrians and that the plaintiff fell where the sidewalk was slanting and that at the highest point it was 5 inches higher than the regular level of the sidewalk, and that the distance from the high point to the level of the sidewalk was the length of a concrete sidewalk slab.

John Barnes, on behalf of defendant, testified that he was alderman of the first ward of Portageville. That he was present with Mr. Reeves, Mr. J. C. McCrate, the mayor, and Mrs. Jennie Day at the place where the accident occurred, when Mrs. Jennie Day pointed out where the plaintiff fell. He testified there was a tree near by and that the place where she pointed out was 5 or 5½ feet north of the tree. Mr. Reeves had stepped the distance in two steps, and that the highest part of the sidewalk was in the center, about where the tree was, and the roots of the tree caused it to be cupped up there. He testified he was well acquainted with the condition of the sidewalk, and that the sidewalk sections were 3 or 4 feet long. That Mrs. Day told him where Mrs. Ward fell or slipped; that the sidewalk was all right there, and that she had stepped on some leaves. This witness further testified that the place where Mrs. Day pointed out, where plaintiff fell, was some 5 to 5½ feet from the highest place in the sidewalk.

Mr. J. C. McCrate, mayor of the city, testified that Mrs. Day stated that the plaintiff did not fall, but just slipped and pointed to a place about 5 to 5½ feet north of the tree where the root comes under the sidewalk. He testified that the elevated place was about 1 inch higher than the level of the sidewalk and that the difference in the high point of the slope to the low point was 4 or 5 inches and the...