Wyatt v. Southwestern Bell Tel. Co., 9540

• Decision Date: 19 September 1974
• Docket Number: No. 9540,9540
• Citation: 514 S.W.2d 366
• Parties: Bennie D. WYATT and Beverly Wyatt, Plaintiffs-Respondents, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 366

514 S.W.2d 366

Bennie D. WYATT and Beverly Wyatt, Plaintiffs-Respondents, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Defendant-Appellant.

No. 9540.

Missouri Court of Appeals, Springfield District.

Sept. 19, 1974.

Rehearing Denied Oct. 10, 1974.

Arch M. Skelton, Skelton & Forehand, Springfield, for plaintiffs-respondents.

Jack C. Lorenz, James A. Daugherty, James S. Golden, Kansas City, Glenn A. Burkart, Mann, Walter, Burkart & Weathers, Springfield, for defendant-appellant.

TITUS, Judge.

As Bennie Wyatt was traversing defendant's sidewalk he allegedly stumbled and fell thereby, so it was averred, aggravating and activating preexisting disabilities in his back, legs and body as a whole. Beverly, his wife, joined in suing defendant with a derivative claim for loss of consortium. Defendant denied the occurrence, denied the existence of any sidewalk defect, denied that plaintiffs, or either of them, had been damaged, and affirmatively pleaded that Bennie's fall, if so, resulted in his contributory negligence in failing to keep a lookout. The jury returned unanimous verdicts in defendant's favor. Thereafter the Circuit Court of Greene County sustained plaintiffs' motion for a new trial because 'the Court erred in giving instructions numbered 6 and 8 which unduly emphasized the issue of negligence in said converse instructions and that defendant was entitled to only one converse instruction on liability, and that prejudice resulted to plaintiffs as the result thereof.' Defendant appealed from the order granting the new trial. § 512.020 RSMo 1969, V.A.M.S.

First we address ourselves to defendant's contention that instruction error, if any, is moot upon appeal because Bennie, 'as a matter of law, failed to exercise ordinary care for his own safety.' On July 2, 1971, a clear, sunny day, Bennie was employed as a taxi driver in Springfield. Near 9 a.m. he was dispatched to defendant's offices on St. Louis Street to secure and deliver to defendant's building on South Fremont Street a 12 14 brown envelope. Defendant's building on Fremont is situate on the east side of the north-south public way and is accessible to motor traffic by an east-west driveway leading eastward from the street. Extending north from the driveway and running along the west side of defendant's building is a sidewalk, six feet in width, which leads to the front or west entrance into defendant's building. About thirteen feet north of the extreme south end of the sidewalk, there was an expansion joint which divided the southern section of the sidewalk from what the witnesses referred to as the 'vestibule slab' located across and in frotn of the entrance into the Fremont building. One of defendant's employees testified that an unevenness had existed in the sidewalk at the expansion joint for some four months before July 2, 1971, and that on the date of the casualty the east side of the south end of the vestibule slab was raised 'about three quarters of an inch' above the slab immediately adjacent to and south of the joint. This witness further said that where the two slabs joined on the west side of the sidewalk the slabs were even. Relative to the difference of the two slabs, Bennie stated: 'I'd say two inches, I guess it would be that.'

Bennie arrived at the Fremont Street building at 9 or 9:15 a.m., parked in the driveway, alighted from the taxi, and walked northward towards and onto the sidewalk carrying the brown envelope in his left hand down by his side. Defendant's building cast a morning shadow across the sidewalk. Bennie had delivered packages at the Fremont Street building on previous occasions. Sometimes he used the rear entrance, sometimes he entered by the front door but had never observed a defect in the sidewalk before he fell. As Bennie approached and entered upon the southern section of the sidewalk there was nothing, so he said, to block his view ahead and he saw nothing wrong with defendant's walkway. 'Right about where I fell,' Bennie testified, he raised the envelope 'to see the room number' on it. This act momentarily obstructed his view of the sidewalk below, and as he was looking at the envelope his right foot caught the up-raised edge of the vestibule slab causing him to stumble and fall.

'In determining the question of whether plaintiff was contributorily negligent as a matter of law, we bear in mind that plaintiff's negligence is a jury question, unless it may be said from all the evidence, viewed in the light most favorable to plaintiff, that it appears so convincingly that no reasonable and disinterested minds can rightfully disagree that plaintiff failed to exercise due care for his own safety and was negligent, and that his negligence was a proximate cause of his injury.' Dalby v. Hercules, Inc., 458 S.W.2d 274, 277--278(1) (Mo.1970). In deciding that question, each case must be determined in view of its own particular circumstances and facts. Moore v. Eden, 405 S.W.2d 910, 916(7) (Mo.1966).

We shall not engage in the unrewarding practice of discussing and distinguishing in detail the many cases cited by the parties. It is sufficient to say that none contain facts exactly similar to those in the instant case, although the well known and basic principles applicable herein may be found in the authorities to which we are referred. It is well to note that defendant does not say that no submissible case was made by plaintiffs and limits its charge of contributory negligence as a matter of law to the fact that Bennie was looking at the envelope, rather than at the sidewalk, when he fell.

Viewed in the light most favorable to plaintiffs, the evidence reveals there was a defect in the sidewalk concerning which Bennie was unaware until after he had stumbled and fallen. That the defect in some degree or another had been known to exist for about four months prior to the accident, takes care of all questions of notice to the defendant. Nevertheless, the size and nature of the defect as described in the testimony renders it unreasonable for us to say that it was so obvious that defendant could safely assume that an invitee would discover it and realize the danger or that an invitee, in approaching the defect and looking at the sidewalk in a fashion observed by an ordinarily reasonable person, would anticipate danger. Bennie's testimony was to the effect that he knew of no danger, and anticipated none. 'Under these circumstances, he was not required to look down at his feet or the pavement at every step, or to survey the pavement with a 'critical eye,' or walk with his eyes 'glued upon' the pavement.' Cunningham v. Bellerive Hotel, Inc., 490 S.W.2d 104, 108(7) (Mo.1973). To hold that Bennie was contributorily negligent as a matter of law for looking briefly at the envelope as he was walking along the sidewalk, would render every male likewise negligent as a matter of law for glancing at his watch, lifting his eyes to greet a friend, diverting his gaze to a window display, seeking the source of an unexpected noise, or quickly diverting his attention from an intended path to appraise the merits vel non of a feminine stride unexpectantly laid bare by an appreciated gust of wind. The question of whether Bennie, under the evidence and reasonable inferences to be drawn therefrom, was guilty of negligence is one about which reasonable minds may well differ. Therefore, we may not hold Bennie guilty of contributory negligence as a matter of law.

In addition to the above, defendant here asserts it was not error to give instructions numbered 6 and 8 'because neither unduly emphasized the issue of negligence, nor emphasized that issue at all,' but even if such be error, granting a new trial was not authorized in that giving instructions 6 and 8 'was invited error, because of the joint requests and tenders by both (plaintiffs) of given Instructions 5 and 7, in that neither (plaintiff) had a right to have both such instructions given.'

In form substantially prescribed by MAI 22.04, Instruction No. 5 charged the jury: 'Your verdict must be for Plaintiff Bennie D. Wyatt if you believe: FIRST, there was a defect in the sidewalk and as a result the sidewalk was not reasonably safe for the public, and SECOND, Defendant knew or by using ordinary care should have known of the existence of this condition, and THIRD, Defendant failed to use ordinary care to remedy it, and FOURTH, as a direct result of such failure Plaintiff Bennie D. Wyatt was injured, . . ..' Instruction No. 7, directing that 'Your verdict must be for Plaintiff Beverly Wyatt' was in the same words as Instruction No. 5 except in the concluding numbered paragraph (MAI 31.04--B) it stated: 'and FOURTH, as a direct result of such failure Plaintiff Bennie D. Wyatt was injured and as a result of such injury Plaintiff Beverly Wyatt...