Kuenzel v. City of St. Louis
212 S.W. 876
Mo.
1919
Check Treatment
BOND, C. J.

Action to recover damages for personal injuries resulting in the death of plaintiff’s wife,' due to the alleged negligence of the defendant.

The City of St. Louis, defendant herein, owns and maintains- a park in the northeastern part of the city known as O’Fallon Park. On the bank of a small lake in this park is a two-story pavilion used as a boathouse, and for shelter, rest and refreshment. Opening from a large room on the main floor used as a lounge, there is a passageway leading to the women’s dressing room. Above this doorway, in large letters, is the word “Women,” and 'three feet inside this doorway is a flight of three steps descending to th’e level of the women’s dressing and toilet room.

The evidence tends to prove that on the afternoon of July 12, 1914, about seven o ’clock and shortly before sunset, Francisca Kuenzel, plaintiff’s wife, a woman in her late fifties, accompanied by a friend, entered this passageway on her way to the women’s dressing room. Being unfamiliar with the building and having no knowledge of the steps inside the doorway, and the electric bulb that is placed in the ceiling to light the passageway being unlighted, she lost her balance and fell, .fracturing her hip and sustaining other serious injuries. She was thereafter confined to her bed until the 19th day of September, when she died after a six-day attack of pneumonia, which the medical experts stated sometime? follows a fracture.

Defendant’s answer was a general denial, coupled with a plea of contributory negligence.

The jury found for plaintiff and assessed his damages at the sum of fifteen hundred dollars, and from a judgment entered in accordance therewith defendant appealed.

*281Capacityental *280I. The first point made by appellant is that the city was acting in its governmental capacity in providing a pavilion furnished with a rest room and ladies ’ *281toilet room in its public park. We think no^- These conveniences were, primarily, if not exclusively, for the benefit of persons who frequented the park. In fact, their existence in the park was essential to its use as a place of recreation and comfort. Without such necessities the park would be ill-adapted to the use of both sexes. [That the establishment and maintenance of the park is the exercise of a proprietary function of a municipality has often been decided in this State. [State ex rel. v. Schweickhardt, 109 Mo. l. c. 512; Carey v. Kansas City, 187 Mo. 715; Capp v. City of St. Louis, 251 Mo. 345.] There was no error on the part of the trial court in overruling appellant’s demurrer to the evidence based on the above contention.

proximate CSiUS6 II. The next error assigned is that there was no evidence that the death of plaintiff’s wife from pneumonia in September was caused by the fracture of her hip in July. Whatever might be our own view 0f the causative relation of these two happenA * ings, it is sufficient to say that the -facts and circumstances disclosed on the trial rendered it proper to submit to a jury the question of the relativity of the two events and whether the first was the proximate cause of the last, and their finding concludes this question of fact in this court.

Hypothetical Question. III. Complaint is made of the refusal of the trial court to permit appellant to put a hypothetical question as to the cause of the death of plaintiff’s wife. The proposed- inquiry was whether upon the facts assumed her death could have been caused by lobar pneumonia. The court excluded the question because there was no evidence that this particular kind of pneumonia • caused her death. On that point the relevant- evidence tended to show that her death resulted from bronchial pneumonia. That ruling is sustained by the record and hence no error is predicable thereon.

*282Subsequent IV. It is finally insisted that the court erred in permitting plaintiff to show that a railing was subsequently placed on the side of the steps where the injury occurred. This would have been error except for the fact that the witness called by plaintiff to make such proof, answered: “I do not know.” The question was thereby rendered harmless. •

Finding no reversible error in the record the judgment of the trial court is affirmed. It is so ordered.

Blair, P. J., and Graves, J., concur; Woodson, J., absent.