Word v. City of St. Louis, No. 42503
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | REINHARD |
| Citation | 617 S.W.2d 479 |
| Parties | Mary L. WORD, Appellant, v. CITY OF ST. LOUIS, Respondent. |
| Decision Date | 14 April 1981 |
| Docket Number | No. 42503 |
Page 479
v.
CITY OF ST. LOUIS, Respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied
May 15, 1981.
Application to Transfer Denied July 14, 1981.
Page 480
Leonard P. Cervantes, St. Louis, for appellant.
John Fitzgibbon, City Counselor, St. Louis, for respondent.
REINHARD, Judge.
Plaintiff fell on an asphalt strip between the curb and sidewalk in front of the Kingshighway entrance of St. Louis Children's Hospital and injured her knee. According to her testimony, the fall came about because she stepped into a hole in the asphalt. She filed suit against the City of St. Louis to recover damages for injuries she sustained. Trial by jury resulted in a verdict and judgment for plaintiff in the amount of $100,000. However, the court set aside the jury verdict and entered judgment for the defendant in accordance with defendant's motion for a directed verdict on the ground that plaintiff failed to establish a submissible case for the jury. Plaintiff appeals.
The parties agree the sole issue with which we are confronted is whether there was sufficient evidence presented by the plaintiff to make a submissible case on the issue of constructive notice of the hole to the city. 1
Page 481
"Entry of judgment notwithstanding the verdict is equivalent to directing a verdict at the close of the evidence." Bennett v. North Brighton Townhouses, Inc., 588 S.W.2d 100, 103 (Mo.App.1979). "In determining whether appellants (plaintiff) have made a submissible case and therefore, whether the trial court erred in sustaining respondent's (defendant's) motion for a directed verdict, the evidence presented must be viewed in the light most favorable to appellants (plaintiff) giving them (her) the benefit of all reasonable inferences to be drawn therefrom ...." Krentz v. Wolff, 560 S.W.2d 271, 278 (Mo.App.1977). Plaintiff's case should not be withdrawn from the jury unless "the facts in evidence and the reasonable inferences to be drawn therefrom are so against the plaintiff as to leave no room for reasonable minds to differ." Baumle v. Smith, 420 S.W.2d 341, 344 (Mo.1967).
With these principles in mind, we shall review the evidence to determine if plaintiff made a submissible case as to constructive notice of the defect. Plaintiff testified that she alighted from a bus on the west side of Kingshighway, crossed the street within the crosswalk, and as she stepped onto the east curb, her foot went down into a hole and she fell. There were no witnesses to the accident. Plaintiff described the hole as being approximately a foot across and three inches deep. After she fell, plaintiff noticed a round piece of metal stuck in the hole which was shiny and rusty. Plaintiff testified that there were cracks around the hole and that there was no fresh dirt in the hole. On cross-examination, defense counsel elicited testimony from the plaintiff that the hole must have been in existence for some time due to the presence of several long cracks extending from the hole. Plaintiff introduced photographs which she testified accurately represented the area as of the time of the accident. On the photographs, plaintiff circled both the cracks emanating from the hole and the piece of metal embedded in the center of the hole. We agree with plaintiff that she made a submissible case on the issue of constructive notice.
Defendant challenges the probative value of plaintiff's testimony and her photographs. Defendant claims plaintiff's testimony that she knew the hole had been there for a long time because of the presence of cracks in the asphalt was "guesswork and conjecture" and...
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Matts v. City of Phoenix, No. 1
...714, 230 P.2d 393 (1951) (settled and sunken areas in paving stones could not have arisen suddenly); Word v. City of St. Louis, 617 S.W.2d 479 (Mo.App.1981) (jury could have reasonably inferred that the defect had been present long enough for the metal to rust and the cracks to appear); Tay......
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Revis v. Bassman, No. ED 107663
...had the opportunity to present evidence of alleged bias evidence and failed to do so in her offer of proof. See Mueller, 617 S.W.2d at 479. Thus, I would hold that the longstanding admonition that a trial court abuses its considerable discretion when it prevents cross-examination into subje......
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Hannewacker v. City of Jacksonville Beach, No. 61062
...714, 230 P.2d 393 (1951) (settled and sunken areas in paving stones could not have arisen suddenly); Word v. City of St. Louis, 617 S.W.2d 479 (Mo.App.1981) (jury could have reasonably inferred that the defect had been present long enough for the metal to rust and the cracks to appear); Tay......
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Cornette v. City of North Kansas City, No. WD33895
...oral testimony showed physical deterioration that was gradual and the joint product of time and neglect. See Word v. City of St. Louis, 617 S.W.2d 479 Instruction No. 4 Defendant objects to Instruction No. 4, the verdict director, of which paragraph First submitted to the jury the question ......
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Matts v. City of Phoenix, No. 1
...714, 230 P.2d 393 (1951) (settled and sunken areas in paving stones could not have arisen suddenly); Word v. City of St. Louis, 617 S.W.2d 479 (Mo.App.1981) (jury could have reasonably inferred that the defect had been present long enough for the metal to rust and the cracks to appear); Tay......
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Revis v. Bassman, No. ED 107663
...had the opportunity to present evidence of alleged bias evidence and failed to do so in her offer of proof. See Mueller, 617 S.W.2d at 479. Thus, I would hold that the longstanding admonition that a trial court abuses its considerable discretion when it prevents cross-examination into subje......
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Hannewacker v. City of Jacksonville Beach, No. 61062
...714, 230 P.2d 393 (1951) (settled and sunken areas in paving stones could not have arisen suddenly); Word v. City of St. Louis, 617 S.W.2d 479 (Mo.App.1981) (jury could have reasonably inferred that the defect had been present long enough for the metal to rust and the cracks to appear); Tay......
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Cornette v. City of North Kansas City, No. WD33895
...oral testimony showed physical deterioration that was gradual and the joint product of time and neglect. See Word v. City of St. Louis, 617 S.W.2d 479 Instruction No. 4 Defendant objects to Instruction No. 4, the verdict director, of which paragraph First submitted to the jury the question ......