151 Mo. 334 | Mo. | 1899
This is an action for damages in the amount of fifteen thousand dollars for personal injuries alleged to have been sustained by plaintiff on August 12, 1894, by falling into a water meter box on the south side of Washington avenue, city of St. Louis, about twenty feet east of the east line of Twenty-Second street, in front of the premises of the Claes & Lehnbeuter Manufacturing Company.
The petition alleges that at the time of the accident, and for some time previous thereto, the cover of the meter was without fastenings, was loose and liable to become displaced and removed, and the opening to become exposed by reason of the accumulation of dirt and debris in the flanges and under said cover. As to the city of St. Louis the petition alleges that by its proper officers in charge of keeping its streets and sidewalks in repair, it had notice, or by the exercise of ordinary care would have had notice of the dangerous condition of the covering of the water meter, before plaintiff received the injuries complained' of, in time to have repaired the game and to have averted the injury. As to the manufacturing company the petition alleges that it was negligent in maintaining said cover in said defective condition. And that by
Defendants answered separately denying all allegations in the petition, and alleging contributory negligence on the part of plaintiff.
The case was tried to the court and jury.
There was a verdict in favor of plaintiff assessing her damage at $1,800 upon which judgment was rendered.
After unsuccessful motion by each of the defendants for a new trial, they prosecute separate appeals.
The manufacturing company on application to the defendant city, in June, 1891, was permitted to sink in the sidewalk, in front of its business establishment, a water meter for the purpose of measuring the consumption of city water in its factory. The meter is placed in a square box, and is covered with an iron lid, set in a square flange on a level with the surface of the pavement. This lid is about twenty inches square, is made of iron and weighs about forty-four pounds. The flange in which it rests is about one inch wide.
About two o’clock in the afternoon of the day of the accident plaintiff was walking along on the sidewalk on Washington avenue, near the southeast corner of said street and Twenty-Second street, when she stepped with her right foot upon the meter cover, which slipped, and her right foot and limb went into the opening, in consequence of which her limb was severely bruised, and her back injured.
She testified as a witness in her own behalf substantially as follows: Am 32 years old, and prior to August 12, 1894, was a dressmaker. Have resided in the city of St. Louis five years. On August 12, lived at 2206 Locust street, and was in good health. On August 12, 1894,1 left my house and went
On cross-examination she said: Am a married woman; my husband’s name is Herbert W. Carvin, but we are not living together. On this particular day I bad started to go to tbe hospital to see a sick friend; it was a Sunday afternoon about two o’clock. The hospital I refer to is tbe Rebecca Hospital on South Grand avenue; I intended going east on Washington avenue and transferring at Eighteenth street. I went north on tbe west side of Twenty-Second street, and when I reached Washington avenue I crossed over to tbe east side of Twenty - Second street; I started to tbe curb of tbe sidewalk, but did not reach it. I was starting to tbe other side of tbe sidewalk on Washington avenue and along tbe east side of Twenty-Second street, and while I was “engaged in that trip 1 stepped right on tbe cover.” I was endeavoring to get to tbe shade of tbe telegraph pole on tbe edge of tbe curb about fifteen or twenty feet from Twenty-Second street, and just at tbe corner of tbe building where tbe cars stop; I endeavored to get on tbe east side of tbe telegraph pole; there was shade on tbe sidewalk near tbe pole; I bad not reached tbe pole at tbe time I was hurt. I bave no doubt about tbe time; it was about two o’clock and could not bave been later*. There was no
W. H. Burch testified for plaintiff that he lived at the plaintiff’s house, 2206 Locust street; had a room there. That-he had passed the point where plaintiff was hurt a number of times. Knew the meter opening with the covering on it near the southeast corner of Twenty-Second and Washington avenue. He was then questioned and answered as follows: “Did you notice its condition before Mrs. Oarvin met with the accident? A. Yes, sir; I noticed this always seemed kind of up and always walked around it and thought it a very weak kind of meter. I stubbed my toe against it. Q. To what extent had you noticed it being up? Witness: Prior to the time before she was hurt ? Q. Yes ? Witness: I saw a man
‘■Q. Can you state to the jury what you saw in the condition of this cover; how it acted under pressure. What may have been under it you do not know? A. I do not know what was under it. Q. Describe how it acted when pressure was put on it? A. It would spring up. Q. How did it when you tried it before she was hurt ? A. I already stated that I did not cross it many times. Q. How long, Mr. Burch, did you notice it in that condition before this lady was ■ hurt? Weeks or months; can’t you say? A. I say weeks. Q. What was that? A. Weeks before, I noticed that it was not properly built.
“Q. Describe how it looked — tell the jury how it looked in its bed? A. I do not think it lay down; I do not think it was down flush. Q. I ask you what the situation was, how the cover lay on the bed before the lady got hurt ? A. As I would approach going east from the west, the west side was higher than the flange. Q‘. How much higher? A. I said from one-half to three-eighths of an inch.”
The witness stated that when he would step on the cover before the accident, it would spring so that he avoided it. That he had this experience more than once.
On cross-examination he testified that he had stepped on the lid several times before the accident, and that he avoided it before the accident.
The court excluded from the consideration of the jury all the statements of this witness with respect to the condition of the cover of the meter, after the accident occurred. This was all the evidence adduced by plaintiff bearing upon the condition of the cover before the .accident.
At the close of plaintiff’s evidence defendants respectively asked an instruction in the nature of a demurrer to the evidence which was refused and defendants excepted. Defendants then introduced a number of witnesses who testified to the condition of the meter cover at the time of and before the accident.
At the close of .all the evidence the court gave a number of instructions for plaintiff over the objections of defendants,
There is no pretense that the meter or the cover thereto was defective in its construction, but the case proceeds upon the theory that the sidewalk into which the meter is constructed became defective and so remained after notice to defendant city, either actual or constructive, hence the demurrer to the evidence should have been sustained. That there was no proof of actual notice.is clear, therefore to entitle plaintiff to recover it devolved upon her to show that there existed a sufficient length of time before the accident a state of facts which would justify the inference that the city knew that the street had by reason of the defective condition of the meter become unsafe and dangerous to pedestrians walking thereon.
With respect to the condition of the meter plaintiff testified that it was apparently in the same condition that other meters are, which are about level with the sidewalks, but thai she never noticed or examined them; that she did not notice the covering before she stepped on it, and in striking her foot against it it was raised; and that she had never noticed it before.
W. H. Burch a witness for plaintiff testified that weeks before the accident he noticed that the cover seemed kind of up, that he stubbed his toe against it, and walked around it. That the west side was one-half or three-eighths of an inch higher than the flange.
John H. Pohlman a witness for plaintiff stated that he was constructor of sidewalks for the city; that he saw plaintiff fall in the hole, and put the meter cover back after she got out; that tker.e was one-eighth or one-sixteenth of an inch of dirt that had worked in under the flange, which he thought he cleaned out with a stick; that when plaintiff stepped on the cover it slid right up. Under the statements of the
The mere fact that a person is injured by a fall upon a •street occasioned by a defective sidewalk is no evidence of itself that the municipal corporation was negligent in keeping its streets in repair, nor is such corporation an insurer of pedestrians upon its streets and sidewalks against accidents, but its liability is for negligence in not performing its duty to the public in not keeping them in a reasonably safe condition and repair.
The injury is not charged in the petition to have been occasioned by the cover of the meter being above the sidewalk, but the allegations are “that said cover was entirely without fastenings, and was loose and liable to become displaced and removed, and the opening to be exposed; that dirt and debris had accumulated in the flanges and grooves, and under said cover, so that said cover was liable to slip and give way under pressure of weight,” and' the evidence shows that the injury was occasioned by plaintiff stepping with her right foot upon the cover, and the sliding of the cover to one side, thereby letting her foot drop down in the hole. There can be no question then but that the defect was a hidden one, and not open and notorious as contended for by plaintiff.
In Hanscom v. Boston, 141 Mass. 242, it was held that the city was not liable to a traveler on the highway for injuries sustained by falling into a coal hole in the sidewalk by reason of the fact that the cover to the hole, which was firm
In Burns v. City of Bradford, 137 Pa. St. 361, it was held that where there is no defect in the construction of a sidewalk, a municipal corporation is not liable for an injury occurring by reason of its unsafe condition at the time, unless it had express notice of the defective condition or the saino, was so notorious as to be evident to all persons passing. That if a defective condition be such that it is discovered by only one out of very many persons who pass by it, in the ordinary pursuit of business or pleasure, it can not be said to be notorious, or to be such a defect that the municipality is chargeable with constructive notice of its existence.
In Cooper v. The City of Milwaukee, 97 Wis. 458, the facts were on all-fours with those in the case at bar. It was said: “There is no evidence to sustain the verdict on the ground of actual notice to the city. The material questions for consideration arise upon the instructions given to the jury and upon those refused, relating to the question of implied or constructive notice of the alleged defects'in the sidewalk and cover of the coal hole. In order to charge the city with negligence which was proximately the cause of the plaintiffs injury on the ground of implied notice, the defect in -the sidewalk and cover of the coal hole must have been of such character or of so long a standing that the city must be presumed to have had notice of it. The city was bound to be vigilant in observing defects in the sidewalk, and in remedying them when they became observable to an officer exercising intelligent and reasonably vigilant supervision over them..... The city is not an insurer against injuries or accidents occur
Whatever defect there was in the cover of the meter, if any, was latent, - and as the evidence failed to show that the city had notice thereof, or that it existed for a sufficient length of time before the injury to justify the assumption that it knew of its defective condition, -as to it plaintiff was not entitled to recover.
With respect to the G-laes and Lehnbeuter Manufacturing Company: as the meter was constructed by it b^ permission of the city for its own exclusive use, no notice of its unsafe condition was required, but it was its- duty to keep it in reasonably safe condition, so that pedestrians passing along on the sidewalk where it was located might not be injured thereby (Franke v. St. Louis, 110 Mo. loc. cit. 526, and authorities cited), but it was not the insurer of the safety of such persons, and as there was no substantial evidence that the meter cover was not in a reasonably safe condition at the time of the -accident plaintiff also failed to make out a case against the defendant company.
In the case of Benjamin v. Street Ry., 133 Mo. 274, the plaintiff was injured by stepping on the cover of a coal hole
Our conclusion is that the demurrers to the evidence should have been sustained.
We therefore reverse the judgment and remand the cause.