Womach v. City of St. Joseph

• Decision Date: 19 February 1902
• Court: Missouri Supreme Court
• Parties: WOMACH v. CITY OF ST. JOSEPH.<SMALL><SUP>†</SUP></SMALL>

67 S.W. 588

168 Mo. 236

WOMACH v. CITY OF ST. JOSEPH.^†

Supreme Court of Missouri, Division No. 1.

February 19, 1902.

MUNICIPAL CORPORATIONS — SIDEWALKS — ICE — NEGLIGENCE — ISSUES — INSTRUCTIONS — EVIDENCE.

1. Where, in an action against a city for injuries from falling on an icy sidewalk, there was no charge in the petition of improper construction, but there was evidence that the walk was on a hillside, and plaintiff sought to draw the inference of improper construction therefrom, it was proper to take that question from the jury by the charge.

2. Where the case was tried, and jury instructed at plaintiff's request, on the theory that the city was liable if it permitted the ice to remain on the walk in a dangerous condition for an unreasonable time, and plaintiff was injured thereby while exercising ordinary care, she could not complain of instructions given on behalf of defendant, not contrary to such theory, but only presenting its side in the same view of the law.

3. Where plaintiff was injured in the daytime by falling on a sidewalk which she claimed was covered with ice, so that the only place on which walking was possible was a round, uneven, and dangerous ridge of ice, six or eight inches high, in the center of the sidewalk, and there was nothing to prevent her seeing such condition, an instruction that if the condition was dangerous, and plaintiff knew it, or by the exercise of ordinary care could have known it, yet negligently attempted to walk on it, and suffered injuries, she was not entitled to recover, was proper.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by Louisa Womach against the city of St. Joseph. From a judgment for defendant, plaintiff appeals. Affirmed.

Grant S. Watkins and H. S. Kelly, for appellant. Kendall B. Randolph, for respondent.

VALLIANT, J.

Plaintiff sues for damages for personal injuries sustained by her in slipping and falling on ice and snow on a sidewalk in the defendant city. The allegation of negligence in the petition is "that snow and ice had been allowed to accumulate and remain in uneven, irregular, rounded, and slippery masses and ridges, causing said sidewalk to be unsafe and dangerous for persons traveling thereon"; that such condition had existed several weeks, and was known, or by the exercise of ordinary care could have been known, to defendant. The answer denied the allegations of the petition, and contained a plea of contributory negligence. The testimony on the part of plaintiff tended to prove as follows: Olive street is one of the principal thoroughfares in the city, running east and west. On the south side of the street, between Twelfth and Thirteenth streets, is a stone wall, which is about 3 feet high at Twelfth, and 8 or 10 feet high at Thirteenth; conforming its height to the descending grade of the street at that point. Behind the wall is the Everett School. The wall shades the sidewalk, so as to prevent snow and ice from thawing as readily as it otherwise would, and as it does on the north side. On December 28, 1898, there had been such an accumulation of snow that it covered the whole sidewalk; and it had remained there so long that it had become beaten by travel into a hard ridge in the middle, 6 or 8 inches high, sloping each way to a thickness of about 2 inches on each edge of the sidewalk. On the top of this ridge was the path on which the pedestrians had to walk, and it was rough and slippery; indentations in the snow being made by the feet passing over it, which, after a partial thaw, and then a freeze, would cause the irregularity. The sides of the ridge were too slippery to walk on. The dangerous condition was also increased by the school children running their sleds over it. On the...