211 Mo. 105 | Mo. | 1908
— This is an action for damages for personal injuries sustained by plaintiff in consequence, as she alleges, of the negligence of defendant. The defendant, as its name indicates, is a cemetery association; it owns a large cemetery in the city of St. Louis, containing several hundred acres. The plaintiff,
’ ’ At' the close of the plaintiff’s case the court, at. the request of the defendant,'gave an instruction to the effect that the plaintiff was not entitled to -récbver, which resulted in a nonsuit with leave, which the court refused to set aside, and plaintiff has- appealed.
The plaintiff’s testimony 'tended to show as follows :■
On the morning in question the plaintiff, in company with- her sister -and daughter, was in- the cemetery aiming-to go'.-to the grave of. the plaintiff’s brother. They first intended to visit another lot and thCy. started in'that direction, but after'going'a jiart of • the way "they concluded to'-abandon that purpose- and -turned back to Pis'it the brother,’s' gritve. There
This is the second suit of the plaintiff against the defendant for this alleged wrong. The first suit resulted in a verdict and judgment for the plaintiff for $350, from which defendant appealed to the St. Louis Court of Appeals, where the judgment was reversed without remanding, the court holding that under the evidence the defendant was not * liable. [Barry v. Cemetery Association, 106 Mo. App. 358.]
The petition in the former ease is not before us, but this is evidently the same cause of action, and the testimony for the plaintiff now is not materially different from what it was then. The law of the case is well expressed in the opinion in that case by Bland, P. J., speaking for the court, and we see no occasion for a further discussion of it.
The roadways and sidewalks were landmarks to direct pedestrians and others the way to go, but if persons chose to leave the regular way provided for them and, for their own convenience or pleasure, undertook to go across the grass-covered ground, they were not entitled to expect the same character of passageway that was provided in the regular road. If, as is contended by plaintiff, the defendant knew that people were in the habit of wandering over the grounds regardless of the roads, and impliedly invited the public to make such use of the grounds, then the most that could be said as to the duty of the defendant was to keep its grounds in reasonably safe condition for people to walk over. According to the plaintiff’s evidence here was a cemetery containing several hundred acres and the only thing pointed out to mar its safety was this small hole so concealed from view by the grass
The judgment is affirmed.