Wyckoff v. City of Cameron

• Decision Date: 07 November 1927
• Docket Number: No. 16095.,16095.
• Citation: 9 S.W.2d 872
• Parties: WYCKOFF v. CITY OF CAMERON.
• Court: Missouri Court of Appeals

9 S.W.2d 872

WYCKOFF v. CITY OF CAMERON.

No. 16095.

Kansas City Court of Appeals. Missouri.

November 7, 1927.

Rehearing Denied December 5, 1927.

Certiorari Denied October 9, 1928.

Appeal from Circuit Court, De Kalb County; Guy B. Park, Judge.

"Not to be officially published."

Action by Emma Wyckoff against the City of Cameron. Judgment for plaintiff, and defendant appeals. Affirmed.

For opinion of Supreme Court quashing certiorari, see 9 S.W.(2d) 876.

Walter E. Trice, of Cameron, and Daniel H. Frost, of Plattsburg, for appellant.

Pross T. Cross, of Lathrop, E. G. Robison, of Maysville, and Gerald Cross, of Lathrop, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $6,000.00 and defendant has appealed.

The facts show that plaintiff was injured about 11:00 p. m. of January 26, 1924, while walking upon 4th street in the city of Cameron. She fell upon an icy sidewalk, breaking off the head of the femur bone. Plaintiff was a widow, past sixty-three years of age, and worked at a store in the city of Cameron. She was on her way home from the store, having traversed about three blocks at the time she fell. The sidewalk was composed of flagstones about 3½ feet square. There was a defect in the sidewalk where she was injured that had existed for upwards of two years, caused by a depression in a broken flagstone. The depth of the depression ranged from 1½ to 5 inches. The testimony is that the sidewalk at the depression was "broken," "ragged," "rough," "slanting," "bulged," and "ridged up"; that water would collect in the depression, or broken place, and when the weather was cold enough the water would freeze and become slippery. Plaintiff's lunch had been brought to her earlier in the evening and at the time she fell she carried a small lunch basket on her arm and had her hands in a muff, the night being very cold. She testified that she did not know whether the ice that had frozen in the broken place was smooth but that the walk was "all rough and bulged and ice had frozen in there"; that on account of the cold she was hurrying home.

There is some conflict in the testimony as to whether there was a general snow and icy condition over the city at the time of the casualty, but plaintiff's testimony tends to show that, while there had been a snowfall some days prior to this time, the streets and sidewalks of the city at the time in question were generally free of ice and snow except in depressions and low places where water from melted snow and ice had collected and frozen. There was no precipitation on Thursday, Friday or Saturday prior to plaintiff's fall.

Defendant's evidence shows that on January 24 the highest temperature was 37 degrees above zero, which prevailed from 11:00 a. m. to 4:00 p. m., and the lowest temperature was 22 degrees above zero, which occurred at midnight of the 24th; on the 25th the highest was 22 above, which occurred at midnight of the 24th, and the lowest on the 25th was 8 degrees above zero, which occurred at midnight of the 25th; on the 26th, the highest temperature was 31 degrees, which occurred at 3:00 p. m., and the lowest 8 degrees above zero, which prevailed from midnight until 4:00 a. m. It appears from this testimony that the last thawing weather before plaintiff fell was between 11:00 a. m. and 4:00 p. m. of Jan. 24th.

Defendant insists that its demurrer to the evidence should have been sustained; because, first, there was no liability shown on the part of the defendant and, second, plaintiff was guilty of contributory negligence as a matter of law. We think there is no question but that plaintiff made out a case to go to the jury on the question of the city's negligence. Defendant contends that there was a general snow or icy condition of the streets and sidewalks in the city at the time plaintiff fell and that there is no evidence that plaintiff fell over any rough or ridged ice. The evidence taken in its most favorable light to plaintiff shows no general snow or icy condition present. There is ample evidence of constructive notice to the city of the presence of the ice as well as the defect in the sidewalk itself. It is contended that the ice might have melted from the terrace during the day and run into the depression and frozen the night that plaintiff fell and, therefore, the city had no notice. According to the temperatures shown by the testimony of defendant's witness, water could not have run into the depression after 4:00 p. m. of Jan. 24th, two days prior to the time plaintiff fell, as there was no thawing weather between those dates. Defendant's street commissioner testified that he was over the sidewalks of the city at least once a week, looking for defects, and that he was over the sidewalk where plaintiff was hurt the night of the injury. One of the proximate and concurring causes of plaintiff's fall and injury was the defect in the sidewalk itself, which had existed for two years or more. This, together with the presence of the ice, caused plaintiff's injury. Constructive notice was shown as to the presence of both the ice and the defect in the sidewalk.

It is claimed that plaintiff was guilty of contributory negligence because she testified that on the morning of the 26th, while going to work she passed over the place where she fell; that it was in the same condition then as it was when the casualty occurred; that she was hurrying home with knowledge of the defect, with a basket on her arm and her hands in her muff. In this connection, much emphasis is placed upon tthe following testimony of plaintiff on cross-examination:

"Q. How were you walking, with your head down? A. No, sir; I was walking straight ahead.

"Q. You were not walking like Mr. Cross said, rushing? A. Well, I was going straight home.

"Q. And it was not with your head down, going tripping along there? A. Well, I was walking along at a good gait.

"Q. You were not paying any attention to the walk then, were you? A. Well, the walk was very good every place until I got to that.

"Q. You did not pay any attention to that? A. I did not need to. The walk was perfectly good all the way from the store there.

"Q. I say, you did not pay any attention? A. No, sir; if that walk had been good, I would have walked on straight home.

"Q. You say you did not pay any attention though to the walk up to the time you fell? A. No; I just walked right on."

The mere fact that plaintiff knew of the defective condition of the sidewalk does not as a matter of law bar recovery on her part. The law in reference to a situation of this kind is stated in Heberling v. City of Warrensburg, 204 Mo. 604, 617, 103 S. W. 36, 40, as follows:

"If he [a pedestrian] knows of a defect and it is not so obviously dangerous that no prudent person would attempt to use the street, he may still use the street provided he exercises that care which a reasonably prudent person would in like circumstances."

We do not think that the fact that plaintiff carried a small lunch basket upon her arm, had her hands in her muff and was walking fast, by themselves or together with the other circumstances, should convict her of contributory negligence as a matter of law. The evidence shows that it was a very cold night, in the words of plaintiff it was "a bitter night," and it was not unnatural that she should attempt to keep her hands warm and to hurry home under the circumstances. It would appear to have been no less dangerous for her to have her hands in her pockets or under her coat than to have to use a muff. The carrying of the lunch basket was not unnatural. Defendant claims that plaintiff was so feeble that her daughter accompanied her home at nights but the evidence shows that the daughter did not always go home with plaintiff, and when she did so it was not to assist her but for company. Plaintiff testified to the effect that she was able-bodied and strong for a woman of her age. It is claimed that plaintiff's testimony...