*1 in fact.” married themselves consider pregnancy, suited State. rule That is All It is so ordered. affirmed. judgment should It follows concur. Company. Appellant, Newman Mercantile Callaway,
Fannie 491. (2d) 12 S. W. Banc, 1928. December en Court *2 appellant. Eranh II. Lee B. A. Pearson *3 respondent. Haywood Bay Scott and Bond for *4 to corporation recover SEDDON, C. Plaintiff sued defendant alleged injuries to have damages personal $15,000 in the sum of city of Joplin, in the by in a a sidewalk suffered her fall been permitted having negligently to charged with which defendant is plaintiff’s evi of disrepair. At the conclusion fall into a state gave jury defendant, dence, request court, trial at the defendant, where peremptory a verdict return instruction to leave move to plaintiff involuntary with took an nonsuit favor defend judgment unsuccessful, entered aside, set was same steps aside procedural to set timely, ant. After but thereon, plaintiff was involuntary and the nonsuit entered. judgment so appeal allowed an from the court lessee, occupant The defendant tenant and of a business building, on situate the southwest corner of Main and Sixth streets Joplin, large where it conducted a department store. question building The was constructed and is another owned Realty corporation, Company, the Newman corporation which latter building premises rented leased said to defendant under a tenancy. corporations month to month two The stock- different holders, majority capital- Realty but the stock of the Com- pany is owned and held individual stockholders of the Mercan- Company, building tile frontage and vice versa. The ap- has proximately streets, one hundred feet on both Main and Sixth extends streets, five stories above the level of said with a basement below the level of the streets. evidence of tends outside, east, to show that the building question
Availof the is located feet, about twelve ten and three-fourths inches from Street; the west curb-line of Main that the sidewalk width on the west side of Main Street ten feet one inch; and building that the east Availof thirty-three is located and three-fourths inches west from west line of dedicated Main Street, or property east line said street. In other words,"the distance between building the east Availof the Avestcurb-line Main Street is feet and ten twelve and three-fourths inches, and the space east ten feet and one inch said lies Avithinthe Street, street lines dedicated Main thirty-three AA'hilethe west space and three-fourths inches of said is located within Realty line of Company. the Newman The erection of the said November, building completed in October or 1910. The Main Street the east side of said was constructed con- currently with the building, erection of the the building con- tractor, with a full width of twelve feet and ten and three-fourths inches, extending feet, one hundred north south, along the east, Main Street, frontage building. Plaintiff claims to injured upon haA^ebeen this sidewalk on November 1923, or about 'years thirteen completion after the plain- said sidewalk. One of witnesses, city engineer Joplin, tiff’s testified that “during all time, the sidewalk has been used sidewalk; dividing thirty-three place line at this and three-fourths inches building; nothing from the visible to indicate there is a cross; line to width, the entire feet and ten and twelve three-fourths inches side- walk, has all open and used time been as a side- Avalk.’’ testimony The uncontradicted of other Avitnessesis to the effect, same so apparently stands conceded that the entire *5 width tAvelve feet and ten and three-fourths inches been con- had tinuously completion used sideAvalk public since in 1910, that, in the contraction of the further shows evidence Tbe outwardly easterly and from was extended building, the basement line, and across the east wall of the main the east the west line of dedicated or six feet over some five to extend so as basement, give light beneath the In into order Main Street. according plan sys- or sidewalk, was constructed consisting lighting system, of a steel bar-lock as the tem, known series, rows, in which frame frame, by pilasters, supported regular intervals, grouted with cement glass prisms set, are at construction, firmly such side- prisms place. After hold series, row, smooth, surface. The first presented a level walk from the east prisms four or five inches glass were distant about prisms suecesive rows of building, and the several main wall of the building about outwardly main wall of the the east extended width of the entire feet, three-fourths eight approximately width consisted of solid concrete sidewalk, of which the balance being size, uniform each glass prisms of a construction. were square. four inches about walking along south
According testimony, plaintiff was to her morning of o’clock on the 10:30 or eleven aforesaid sidewalk about a letter street box mail paused 1923. She November had display window defend- curb, and had turned toward near the when, steps, ac- store, and had three or four department ant’s taken caught of her shoe was a hole cording testimony, the heel to her having glass prisms been one occasioned carrying several She of the sidewalk. out of the frame broken of her heel shoe parcels time, manner in at the side- to fall caught balance and her to lose her caused body. Plaintiff testified wrenching straining her thereby walk, two. or two that hole was about estimation would be that her “best just on window; the mail box half, show feet from the and a entrance; judge I I would east just south of the of the walk outsicle neigh- feet, half, somewhere and a five or six about four went I before fell.” borhood, that, at different times testified
Witnesses on behalf sidewalk where occasions, they holes in the saw different and on had not been sidewalk and from the glass prisms had been broken respecting the testimony such witnesses composite replaced. The “Well, it was follows: may be stated as condition of the sidewalk walk would break of that along vibration there —the bad—cracked through; crack on the un- and fall down glass and crack them they but a nothing so keep dropping down side derneath go step it, it would on you would time top, and about the shell side; they east along on the through; well, out all there is in; came a hole cave out and it would and on when would it off *6 day drop they in, would another one or holes two: some were weeks; in there for two there have been holes for two there weeks them; boards laid over sometimes the boards were on them with them; along time; holes all off of there were there sometimes any glass being particular November, out there don’t remember they 1923; got was broken out sometimes have sometimes it condition; I glass; in bad fixed, it was have seen them out all attempting jury building; I am tell the I not around saw time; any particular glass I glass pretty there have seen out out at every there; passed glass I I mean was near time didn’t left out time; I glass around at meant I have there all one seen places; out at different different I have noticed times there was glass and men working broken out all around there were out there in; I putting any don’t whether glass on it them know there fell; glass walk, out where she T have seen out all around at places different times and have seen them out different and men working they just glass put in new all I them; have seen they worn; say any particular ivhen become I couldn’t as to place; just places; spots; I pick at different out the couldn’t don’t know they put back; all of how soon most some of were time those open glasses there; would year out there were holes broken they just I two, long open, glasses or don’t know how were different there, times; just broken out at different don’t mean to state what glasses out; length they were out what or of time were don’t know they repaired I quickly glasses; how tell those couldn’t day what gone I they anything that; were have seen the like same hole on days today I of, two different know see a hole and probably tomorrow; time, the same hole there holes were from time dif- ferent holes.”
Only testify respecting one witness undertook to the condition of plaintiff’s alleged sidewalk at precise place time fall. just I got He testified: “I didn’t see her but saw her fall, as she up; yet stooping position, just she was in a and that is about all I it; hurry just I on; saw of I I saw was in a her as she got and went Q. up; just I went down the sidewalk an hour or before. two What you there, did see as to the conditions condition walk, say point? at A. I several will there was of them out; only place way I along; at that but all noticed them the day fell; why, holes, next after I mean; she were that is what there recollect, probably as I as well now she was somewhere little south box, mail show window.” On somewhere about the cross- fall; examination, I “I didn’t see her all testified: know witness is that at different times I have seen holes dif places, described; was, ferent as I she it wuuld where be box, I suppose little bit south and west of five or six the mail right up at the I feet; her; she was show window seven when saw window; at show it w'as south of the entrance she was in a position; merely I I stooping stopped when saw her and heard I somebody say happened on; vdiat had stop and went didn’t place then; if don’t know there was a look at the hole there because fell; I it was don’t know' w'here she south entrance about five I box, suppose, mail or six seven feet west of the somew'here in *7 neighborhood; place day; I I just that at that the next hap looked pened passing along thought to be there and about it and noticed along along there; four the day; there were three or holes there next right along standing; I I mean there where I saw her don’t know' not, know w'hether it w'as w'here she fell or and don’t whether those glasses not; right I day broken it was where her, wTere out that or saw right along there; any time; close there at made how' measurements building, my far it from was from the best estimate recollection and way twenty is, view of it it was all inches to the three feet at; any I where she w'as didn’t make actual measurements.” president Eealty Newman, Mr. Albert both the New'man of Com pany Company, and the w'as Newman Mercantile called as a wit by plaintiff, defendant, ness and testified that Newman Mercantile employed porters Company, display window's, washed the w'ho and every inspected day, except w'ho and Sunday examined (plaintiff Wednesday), that accident occurred on testified the they danger prism out, a in whenever found broken or of cracking falling they prism replaced took it with out, the out an other; prisms kept supply that defendant a on hand purpose; occasionally prism cracked, such that wTas occasional ly defendant, broken, W'ould be New'man one but that Mercantile Company, keep repair.” “attempted perfect them in question in
The evidence further show' that the sidewalk tends to Eealty Company originally w'as in constructed the New'man ac- city Joplin, prepared by specifications cordance with the of the upon engineering that, department city, the its said com- pletion viewed, November, 1910, or said sidew'alk was October accepted, Joplin through approved, and its construction engineering department city engineer. Appellant assigns giving peremptory error in of defendant’s involuntary instruction, plaintiff v'hieh forced to take nonsuit against go and to suffer for the reason her, that claims) (so impose positive appellant rules of the common law' duty occupant premises the tenant or ui>on reasonably keep safe condi- sidewalk to maintain same private w'here, sidewalk serves some tion, as the instant duty purpose, premises; that such de- use or convenience to his owm regard- occupant premises, the tenant or of the volves corresponding any duty part or like less of the landlord premises, regardless any governmental or duty owner of such liability part municipality by on the or actionable reason of maintain failure to cause same to be main- reasonably tained, safe condition public; and, for use furthermore, that there is substantial evidence to show herein part lying plaintiff fell on that ivithin the premises occupied by defendant, part line of which side- owner, never walk area had been dedicated or condemned Joplin, public use, and hence such of the side- injured, within area, walk was not under the governmental supervision jurisdiction exclusive control or but municipality, super- was under the immediate control and herein, tenant, vision of land and its the defendant owner whose same, private, public, to maintain and not prop- injury reasonably not to erty, safe condition so as cause to an licensee, invitee, using the same.
Respondent, hand, on the contends of main- other taining, causing maintained, a reason- wholly ably pedestrians safe condition for use of rests and ex- *8 clusively abutting municipality, not an the and land- occupant abutting premises, or owner, the tenant of the where and landowner, occupant abutting .premises tenant, such or of the does dangerous create, creating, a not, act, his affirmative or aid sidewalk, defect, obstruction in opening, and unlawful or the amount- injury; ing nuisance, a and causes and that formal- to which the private ity necessary prop- is to constitute a common-law dedication the continuous and uninter- erty sidewalk, for as a use sidewalk, private for use as a with rupted use of acceptance approval with acquiescence the the owner’s public sidewalk, and municipality, area so used a the makes the in the mu- jurisdiction thereof places supervision exclusive the nicipality. general liability failure to maintain a rule of for actionable Juris, 1304, Corpus repair
public sidewalk is thus stated liability, imposing expressly 1105: a statute “In the absence of injuries to traveler not for abutting occupant or is liable owner not through repair, if he cause did failure to maintain sidewalk did which he not therefor, from defects therein necessity nor grow out general of a liability rule create, will not as and such repair to construct requiring owners statute or ordinance default of the upon authorizing municipality, sidewalks and but lia- expense; their them at ownei’S, to construct and is to mu- ordinance bility statutes or of an owner under such prescribed there- penalty alone, the fine nicipality to the extent abutting' where, will be owner liable bis bj. tbe affirmative But condition, dangerous as where uses he act, he creates to or convenience and fails private his benefit exercise rea- for own lawfully using injury persons prevent, way, care sonable Where, or maintains nuisance. however, he his or where creates reasonable, negligence and no proper is 'and sidewalls is use . will . An will shown, not be liable. . owner he condition of a injuries from the defective sidewalk be liable repaired a previously had defect fact that he therein. because Drug Co., 297 Mo. In Breen v. wherein sub the case of were almost identical with circumstances those stantive facts and unanimously of this court case, in the instant Division Two involved liability actionable that there was no lessee ruled injured plaintiff whereon an1 premises abutting upon the sidewalk sidewalk, hole in the a small occa fallen because of to have claimed glass breaking of a small in and removal therefrom sioned (l. 178, 184 seq.) c. et : In that this court said prism. set or that, walking alleges petition in her while [plaintiff] along “She compelled to sidewalk, cane, use walk which she the above glass been broken into hole where had out of ing, went a small defendant, building occupied by light in front complained injuries of in which fall and sustain caused her to light aforesaid alleged It was allowed petition. that the sidewalk put use permitted for the and benefit said sidewalk defendant, occupied by tenants lessees of in the building; glass frame work said ‘that hole caused plaintiff’s which and into light said broken out cane plaintiff’s went, the time of prior fall, had existed some time knew, ordinary long so the exercise defendant of said known, care could of said defective condition light aforesaid, in the sidewalk and that on account the holes holes where had been said on account of the brok *9 light, dangerous work en out of the frame in and said reasonably in passing pedestrians use of along was not safe for the in using petition alleges . . this case and said sidewalk.’ . The lessee, occupied the that as tenant and at' defendant, Louis, in and streets St. southwest corner of St. Charles Seventh negligence permitting Missouri, guilty it in and that was of small by said property, hole remain in the sidewalk in front of reason plaintiff’s necessary for cane, which which it was her to in use hole, been broken walking, out, went into said where had and injuries complained in fall, pe- her to and caused sustain the defendant, any tition. It is not that its employees, claimed manner, produced hole, any producing said in in aided same. 776 contrary, plaintiff,
On in her petition, damages seeks to recover respondent theory impliedly from on obliga it was under keep walk in if repair. tion to said Even had ordi there been an city requiring in nance of the of St. Louis existence the defendant keep in repair, said the plaintiff walk it would not have afforded right against in view of facts action defendant aforesaid. [Quoting Realty 240 Co., Russell Mo. S. Sincoe W. 428, 147.] tenant, simply The defendant here was and no claim is made produced caught plaintiff’s hole which cane threw her jury down. verdict defendant, returned a for accordingly. ruling wras entered In view of the in the Russell supra, recovery there can facts this disclosed record. Defendant’s demurrer to evidence should been sustained.”
The doctrine and rule of law announced
Breen
has
case
by
Megson
been reaffirmed
Division Two of this court in
v. Gris
wold,
plaintiff
through
S. W.
cov
wherein
fell
defective
ering
in a
sidewalk,
was constructed
for
used
purpose
affording light
such
to the basement beneath
plaintiff sought
recovery against
and wherein
landowner
alleged negligent
keep
repair.
for his
said
failure to
sidewalk in
Realty Co.,
In Russell v.
777 city, city negligence is that of the cannot The saddle that property city . . . obligation upon may owner. While the compel safe, a to remove ice make a citizen snow and sidewalk he obeys requirements pri- of the city, as an instrument not as his mary duty. city.” failure to be the His do it would failure of the City, 137, 147, approvingly
In v. Kansas 181 Mo. this court Ford recognized quoted following statement the rule Shear- (4 Negligence Ed.), Section 343: “An man Redfield on owner, duty such, to maintain the street or sidewalk in ow7es responsible any for defects premises; front of his therein by wrongful act.” Whereupon, which his own we are not caused (l. 146) keeping c. : “The therein announced rule sidewalks in n reasonably regulation; police for is not a it safe travel is a ’’ resting governmental duty, municipal corporation. Co., City In Life Insurance of St. Louis Connecticut Mutual sought to plaintiff municipality Mo. recover from defend 97, the municipality ant, landowner, had sum which been compelled Norton, in sátisfaction of a pay to one Mrs. to against municipality personal obtained Mrs. for 'in Norton juries passing over a by her from sidewalk front received fall denying plaintiff municipality In property. of defendant’s recov ery against owner, this property division this defendant court damages said: Mrs. Norton were for recovered breach of “The city’s reasonably duty keep safe from defects to its result streets ing To Mrs. Norton the operation causes. natural defend dtity owed, regard it to duty. only ant owed The the side no such city in walk, city; duty created its ordi was to the its citizens the prescribed nances in which it itself and measure for neglect, penalty imposed for their violation. damages for its may pay damages compelled to have been the v7as re efficiently its promptly oE to enforce ordinances. sult its failure citizen; them, it and not that of the But v7asits to enforce obey, pay and, if fail to citizen is to he obey, city imposes failure, damages penalty which such and not the for may compelled neglect perform its pay which ours.) duty.” (Italics (Mo. 831, 833, plain W. 235 S. wherein Wright App.),
In v. Hines damages injuries personal claimed to been tiff sued recover alleged fall to have been constructed from a suffered J„ owmer, speaking Cox, P. and maintained defendant Street, “If Springfield Appeals, Court of said: Locust where for the street, occurred, v7as and the sidewalk a the accident is not thereof, accepted city, so then defendant and had been although may ease, have built and liable maintained A the plaintiff properly injured. fell and was *11 778 repair
owner owes no to to and maintain in a con- safe abutting property. obligation dition sidewalk his a I-Iis is to the city, obligation rests on city, to the and not on the abut- Louis, ting property 537; v. St. owner. Mo. St. [Norton Louis v. 92; Co., 107 Young, Insurance Mo. Baustian v. 152 Mo. This 317.] entirely distinguishable doctrine is from appellant the cases cited (plaintiff), private that if to the effect a individual throws water on thereby accumulate, a sidewalk and causes ice to or constructs a coal places thereon, walk, stairway puts chute or a an or obstruction any may purposes, kind on walk for his own he be personally injury persons resulting liable for an therefrom. Those are held liable they placing something because walk are or that does not be- long placed use, there, or is there for his own and is a part of the originally walk principle constructed. The on which they are responsible application private held has no to individual may who ’’ city fail in his a sidewalk property. his (Italics ours.) upon by appellant (all
The several cases cited and relied
herein
carefully analyzed)
which we have read
fall within
category,
class,
or
Wright case, supra,
of cases
mentioned
wherein the
abutting property owner,
tenant, by
act,
or his
his affirmative
creates
dangerous
sidewalk, amounting
condition in a street or
to a nui-
sance, by making
opening therein,
an
or
placing
excavation
or
some
adjacent
entirely foreign
obstruction
thereto,
thereon or
to its use as
sidewalk,
box,
open
such as a coal
an
hole,
unguarded
meter
manhole,
light
areaway,
grating,
open
an
well, a sidewalk
or cellar
door, etc.
In the instant
there is no substantial evidence that
anything inherently dangerous
original
there was
in the
construction
sidewalk,
plan
system
or
or
of its construction, which
was done in
specifications prescribed by
accordance with the
the en-
department
city
gineering
Joplin,
and which construction
was viewed
completion,
the officers of the
its
after
and was
approved and accepted by
acting through
city,
engineer
its
engineering department.
particular system
It
is true
private
personal
construction was
afford
used to
some
conveni-
ence
tenant,
owner of the
premises,
its
furnish-
ing
lighting
a means
sidewalk,
the basement beneath
but such
plan
method or
frequently
of construction
from that
does not differ
used
cities, especially
be seen in
all
a business district. When
originally
the sidewalk was
completed,
constructed and
it afforded a
smooth, unbroken,
entirely
anything
surface,
level
free from
in nature
opening, whereby
pedestrian might
obstruction or
en-
any danger
tripping
falling.
counter
or
The mere fact glass prisms may
some of have broken
fallen from
the steel
work
following
frame
sidewalk at
construe-
different times
opinion, differentiate the instant
not, in our
ease from one
tion does
may
stringers
or
been broken
planks
loosened,
wherein
or
from a wooden
removed,
from one
entirely
wherein
removed,
may
broken and
flag-stones
have been
loosened,
bricks
; nor, in
flag-stone
opinion,
our
sys-
brick or
does the
from a
plan
herein call for
ap-
tem or
of construction
principle
and different rule or
plication of another
than that
law.
weight
judicial authority,
in the
applied,
which is
case of
flag-stone
wooden, brick or
sidewalk.
disrepair of a
There is
actively
pro-
herein that defendant
caused or
substantial evidence
*12
plaintiff
caught
claims to have
in which
the heel of
duced the hole
secondary
Regardless
incidental and
use and
of the
conveni-
her shoe.
clearly
that
herein, it is
evident
defendant
ence to the
primarily
pub-
constructed as and for
and
was intended
structure
foreign
such use.
purpose
Hence,
to
sidewalk,
no other
lic
and for
rule, followed and
established
announced
general and well
under the
State,
by
in this
Appeals
and
Courts
the
this
and
the
court
appellate
states,
duty
courts of other
the
overwhelming majority of the
reasonably
in a
safe con-
maintain such
repair and
upon
municipality,
pedestrians rests
the
the
for the use of
dition
liability
part
actionable
on
is no
the
city
there
Joplin,
abutting landowner, toward,
an
is the lessee of
defendant, which
in
keep
repair.
such sidewalk
maintain and
plaintiff to
of,
in favor
or rule of law announced
the doctrine
insists that
Appellant
Megson cases, supra,
in
Breen and
has
this court
the
Two of
Division
Megson City
court,
banc, in the ease of
en
renounced
been
out of the
The latter case arose
same cas
781 thirty-three space lying within the of three-fourths inches within property Realty line of the Newman lessor. Company, defendant’s But the is evidence conclusive and that the entire area uncontroverted between the east main wall defendant’s west curb- continuously line uninterruptedly of Main had been Street used period years as for the entire of thirteen following completion, acquiescence permission its with lessor, apparent acquiescence defendant and its consent, and with the acceptance Joplin. positive evidence is that there upon was no line of demarcation marked the sidewalk to show property facts, location of line. Such circumstances and user evidence a common-law dedication of that of the sidewalk area is located within the line of the landowner, and no necessary formal is dedication or condemnation thereof required. City Louis, 618, 625; v. 110 of St. Mo. O’Malley [Heitz City v. 700; Lexington, App. 695, City, Mo. v. Drimmel Kansas App. 346; City 180 Mo. 339, Louis, 284; St. 274, Meiners Mo. 687, Louis, 703; City Benton v. St. 217 Mo. Hanke v. of St. Louis (Mo. Sup.), 936; (Mo. 272 S. W. Walker v. App.), Railroad Co. 198 S. 441, 442; City (Mo. W. App.), Stretch v. of Lancaster 206 S. 388,W. primary maintaining thinkWe that the in rea- 389.] including* thirty-three sonable area, entire strip three-fourths aforesaid, inch and rested devolved mu- nicipality, Joplin, occupant and not the defendant premises, lessor, Realty Company, the Newman respects rights plaintiff pedestrian herein. opinion rightly gave
We are therefore of trial court peremptory instruction, evidence, the nature of a demurrer the' and that the nisi be affirmed. should It so ordered. Lind- say, C., concurs; Ellison, C., sitting.
PER coming CURIAM: This cause into Court Banc en from Di- One, foregoing opinion SeddoN, vision divisional is adopt- G., Walker, Ragland, Attuood, ed as the decision of the court. Blair and JJ., J., concur; dissents; Gentry, J., G. in a White, separate dissents Gantt, opinion, J., in which concurs.
GENTRY, regret J. -I I opinion that cannot concur the of Commissioner wherein he holds the trial court jus- that was SeddoN, plaintiff’s sustaining tified in to the demurrer evidence. It is al- leged petition by plaintiff in the and established her evidence that caught part o,n the heel of her hole in that of the sidewalk shoe defendant; words, in other under the control of the the thirty-three of walk next to the build- and three-fourths inches the
ing, by being occupied portion This the same defendant. the ground sidewalk was over owned defendant’s lessor .and the occupied by basement underneath was at all times defendant: the steel glass prisms placed in frame with had been for every inspected day the benefit defendant, defendant the same except repaired repairs same were needed. Sunday, and whenever defendant, did nor This not abandonment the- an constitute an opinion that acceptance city. I Hence, thereof am of the question jury, and that action proper one to submit to taking jury trial constituted error. court the case from v. case cited Breen Johnson Brothers Commissioner Seddon Drug Co., 176, authority support of his con Mo. is not tention; for in that sued the owner case injuries for in front of said build received on defective sidewalk ing, Yery properly the entirely Su walk was the street. preme city was liable Court de held that case occupant building. fective sidewalk and the owner c. Drug Co., 297 Mo. l. Johnson [Breen Brothers 184.] according injury plaintiff, In the to her evi- instant dence, was on over received 'while she ground fails to show occupied defendant, and the evidence piece ground that said had been dedicated use, exercised ownership and it ever also fails to show' that the fact for question jury. one of control over it. v'as Hence, the
Being be reversed remand- opinion should ease Gantt, J., ed, opinion I majority dissent herein. concurs. from the Company Light Company Trust Laclede Gas v. St. Louis Union Estate Adele Executors Julia Ann Zeibig, Fred G. Sarpy Appel Company, Investment Morrison, Hanover (2d) lants. 12 W. 432. S. One, December 1928.
Division