JEANNE LUETTECKE, Aрpellant, v. CITY OF ST. LOUIS, CAESAR GOGGIO and THERESA GOGGIO, his wife
Division One
May 7, 1940
140 S. W. (2d) 45
*NOTE: Opinion filed at September Term, 1939, March 6, 1940; motion for rehearing filed; motion overruled at May Term, 1940, May 7, 1940.
PER CURIAM: - The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur.
Hall & Todd for appellant.
DALTON, C. - This is an action for damages for personal injuries alleged to have been sustained by plaintiff on account of the negligence of defendants. At the close of plaintiff‘s case, the court directеd a verdict for defendants. Plaintiff, thereupon, took an involuntary nonsuit with leave to move to set the same aside. Plaintiff failed to get said nonsuit set aside on motion, and appealed from the judgment dismissing her suit. Damages were asked in the sum of $20,000, hence our jurisdiction.
Appellant assigns error on the court‘s action in giving instructions in the nature of demurrers to the evidence directing a verdict for respondents.
The petition alleged that, due to the construction and maintenance of a tеrrace which encroached upon the street, water was discharged upon an inclined sidewalk in front of respondents’ (Goggios) property; that ice accumulated on the sidewalk; that due to the con
Appellant says the negligence was as follows: “The negligence of the respondent city consisted in permitting an improperly constructed sidewalk and an ornamental terrace which cast excessive drainage onto that defective sidewalk, which it knew was liable to freeze, and become dangerous to pedеstrians, to remain in that dangerous condition long after it knew or ought to have known of the danger. . . . The negligence of respondents Goggio consisted of maintaining a high terrace on their property which caused excessive drainage to run upon a defective sidewalk which they charged with notice was liable to freeze on the incline in the sidewalk and cause it to become dangerous to pedestrians.”
The evidence tended to show that for over two years aрpellant and her husband had been tenants of an apartment house on the east side of South Compton Avenue in the City of St. Louis; that they were tenants there when Goggios purchased the property; that the apartment entrance was about 5 feet above the level of the sidewalk; that seven concrete steps and an iron rail bannister led up to the entrance; that on each side of said steps a terrace extended down to the level of the sidewalk; that thе building was back 17 feet from the sidewalk; that a yard or terrace crown 2 feet wide extended in front of the building; that the terrace sloped toward the sidewalk and that the property was immediately south of an alley.
The sidewalk was built in 1928. The permit for construction issued to the former owner provided for a 5-foot sidewalk to be located 5 feet from the curb and 2 feet from the property line. At least this was the regulation then in force. The final measurements by the city, when the work was completed, indicated that the sidewalk was 4.9 feet in width; that it was located 2 1/2 feet from the curb; that the terrace encroached 1 1/2 feet upon the city property; and that a 6 inch grass plot existed between the property line and the edge of the sidewalk. The report shows 12 feet between the curb and the property line, so 2 1/2 feet was unaccounted for. There was evidence that such adjustments in location of sidewalks were permitted to avoid cutting terracеs and pushing them back, and that the sidewalk here was in line with that in front of adjoining property.
Appellant offered in evidence an actual survey of the premises made by respondent city‘s engineer in April, 1936, after appellant was injured February 12th. This survey, and the evidence in con
The sidewalk slopes from the foot of the steps toward the alley, the difference in elevation being 73/100 of a foot in 22 feet. The north section of the sidewalk, between 2 and 3 feet in length next to the alley, is about an inch lower on the east side than the section on the south, and the northeast corner of the section next to the alley is about 4/100 of a foot (about 1/2 inсh lower than the surface of the paving in the alley). This last section of the sidewalk also slopes slightly to the east or toward the property line, as if the northeast corner had settled. The northwest corner is slightly elevated, as compared with the northeast corner, there being a difference of 1/2 inch in 4.9 feet.
On the 10th and 11th of February, 1936, according to the U. S. weather bureau records, it was below freezing all day. It snowed on the 11th for two hours. On the 12th the temperature arose from 20 degrees at 1 A. M. to 33 degrees at 2 P. M. It remained at 33 degrees until 9 P. M., except for the 4 P. M. reading of 34 degrees. On the 12th at 3 P. M. there began a freezing rain which continued thereafter until the following day. The hourly amount of freezing rain was not indicated on the records.
About 7:30 P. M. on the 12th, appellant started from her home to the store. She weighed about 220 pounds, wore shoes with military heels, neither high nor low, but no galoshes or rubbers. It was not raining at the particular time. She came down the steps and walked north alоng the center of the sidewalk. She observed that the steps and sidewalk were covered with ice and that the sidewalk was slippery and treacherous. She held to the rail as she descended the ice covered steps. She walked slowly, because it was too dangerous to walk fast, and so that she would not fall and hurt herself. She did not notice any rough places on the ice where she walked. When she had gone
She further testified that, because of the ice on the sidewalk, she had already lost her balance and was slipping toward the alley before her foot struck anything; and that she did not know how far she would have gone if she hadn‘t hit something. There is also some showing in thе record that she did not know what she hit and her counsel, in statements to the court during the trial, took the position that she didn‘t know what she “stumbled over;” and that she slipped somewhere on the north side of the little tree.
When appellant‘s husband left his work at 5 P. M. that afternoon, it was raining and it turned into sleet. At 5:15 P. M., when he arrived at home, it had started to freeze, and was slippery, and the sidewalk in front of the apartment looked about the same as other sidewalks. There was evidence that an hour аfter appellant was injured it was freezing and the ground was covered with a coating of ice; there was a coat of ice on the sidewalk and it was thicker on the section of the sidewalk next to the alley. The ice on this last section seemed to come from the side of the terrace “and it appeared to be like a stream of water.” The next day there was still ice on the sidewalk, about the same as the night before, and it was thicker on the last section of the sidewalk next to the alley. The witness could not estimate its thickness, except to say it was thicker on the last slab than on other parts of the sidewalk. You could see where “the water had flowed in a certain direction; that is, from the terrace toward the other part of the sidewalk and had made marks accordingly.” This ice on the last section of the walk was rough, how rough the witness did not say. “Lines of streams” or ridges, 2 to 15 lines, according to the best estimate witness could make, extended 3/4 of the way across this section of the sidewalk, measured from the terrace side. Witness could not say when this ice formed but he didn‘t notice it when he returned home before his wife was injured.
With reference to the liability of respondents Goggio, the appellant contends that when an abutting property owner maintains upon his premises a structure (in this case an artificial terrace extending beyond the property line) which causes an artificial accumulation and dis
Appellant concedes that “the respondents Goggio would not be liable for maintaining the defects in the sidewalk, as it is the duty of the respondent city to maintain its improved sidewalks in a reasonably safe condition.” Appellant says the sidewalk was defective and that the city knew of the conditions affecting the sidewalk, since its record disclosed them and they had existed for seven years. Appellant refers to the existence of the terrace, its extension into the street, the incline of the sidewalk, the location of the walk with reference to the terrace and to the curb, and the extension of the curb around and into and above the level of the sidewalk at the foot of the incline. Aрpellant insists that respondents knew that it would rain; that water would run down hill; that water would freeze and persons would be liable to fall on the walk and be injured.
It was the duty of the respondent city to keep the sidewalk in a reasonably safe condition for persons traveling thereon. [Norton v. St. Louis, 97 Mo. 537, 11 S. W. 242.] The respondent city was not liable for the slippery and treacherous condition of the sidewalk produced by the freezing rain immediately before appellant was injured. It was a general conditiоn produced by natural causes and appears to have been general throughout the city. The condition was of recent origin and danger therefrom obvious. [Barrett v. Town of Canton, 338 Mo. 1082, 1086, 93 S. W. (2d) 927.] There is no contention that the city was negligent with reference to this ice. The respondent city was not required to keep its sidewalks in an absolutely safe and perfect condition. It was not liable for every slight or trifling defect or obstruction or mere inequalities or irregularities of the surfaсe of such sidewalk. [Taylor v. Kansas City, 342 Mo. 109, 112, S. W. (2d) 562, 564; Maxwell v. Kansas City, 227 Mo. App. 234, 52 S. W. (2d) 487, 491; O‘Malley v. City of St. Louis, 343 Mo. 14, 119 S. W. (2d) 785.]
It was the duty of respondents Goggio to exercise ordinary care to guard the public from injury from any artificial accumulation and discharge upon the sidewalk of surface water, which might freeze and make the walk dangerous. The law is well stated in Stith v. Newberry Co., 336 Mo. 467, 481, 79 S. W. (2d) 447, relied on by ap
In the case of Stith v. Newberry Co., supra, the defendant maintained an awning, and a casing therefor, across the front of its store building. The awning was permitted to hang out from under the casing, creating an artificial structure over the sidewalk. Snow and ice accumulated in the folds and slack of the awning, and, as it melted, a considеrable quantity of water was discharged in a continuous stream upon one place in the sidewalk. The water ran down and across the sidewalk and later froze so that there was a slab of ice 2 to 2 1/2 feet in width across the 12 foot sidewalk. The plaintiff walking along on the sidewalk, which was apparently clear of snow and ice, stepped on this strip of ice and fell and was injured. There was evidence that the condition of the awning was created by defendant‘s acts; that the сondition had existed for sometime and was known or could have been known to defendant in time to have remedied it. It was held that the facts were sufficient to make a case for the jury. The facts here, however, are very different.
The burden of proof rested upon appellant to offer sufficient competent credible testimony to establish negligence, proximate cause
Whether or not appellant made a submissible case for the jury was properly tested by the demurrers to the evidence offered by the respective respondents at the close of appellant‘s case. The demurrers admitted all facts shown in evidence and all reasonable inferences to be drawn therefrom. A demurrer to the evidence should be sustained only when facts and the inferences to be drawn therefrom are so strongly against plaintiff as to leave no room for reasonable minds to differ. [Cech v. Mallinckrodt, 323 Mo. 601, 609, 20 S. W. (2d) 509.]
Was the evidence, considered in a light most favorable to appellant, sufficient to make a case for appellant against either of the respondents? In the view we take of the case it is only necessary to determine whether the evidence shows that the negligence, if any, of the respondents caused or contributed to appellant‘s injuries. We think the cause of appellant‘s injuries, on her own testimony, remains a matter of doubt, uncertainty, conjecture and guess. Her counsel, in effect, concedes the weakness of her case as follows: “Appellant told the facts, and if the respondents contend that under the circumstances surrounding hеr casualty she was obliged to say what caused her to fall with greater definiteness, they are asking for what she could not state. Under adroit cross-examination she was induced to say that she ‘might’ have fallen. So she might have and again she might not if her foot had not struck the end of the curb, and perhaps the rough ice, for she was walking right towards the rough ice.” (Italics ours.)
Appellant‘s position is, however, that the jury should have been permitted to bridge the gap and make a guess on whether appellant‘s injuries were caused by any negligence of the respondents.
The evidence shows that appellant fell on the pavement in the alley and was injured. Her left knee was badly bruised, her right ankle dislocated, certain bones in her right foot were broken and her back was hurt. The evidence fails to show with reasonable certainty that appellant slipped on ice that formed from drainage from the terrace, rather than on ice which formed on the sidewalk from the freezing rain. It is conceded that a general icy condition existed. The entire sidewalk was covered with ice and was slippery and treacherous. There was no evidence that water from the terrace ran upon the sidewalk or formed ice upon any part of the sidewalk except the last section which was lower than the rest of the walk.
It is further apparent that there is no satisfactory evidence that appellant‘s fall was produced by any obstruction. She had lost her balance and was sliding before she reached the obstruction. She did not say that she would not have fallen, had there been no obstruction. She testified: “I can‘t say if I could have retained my balance after I started slipping, if I had not hit anything.” There is no contention that her injuries were produced by contact with an obstruction at the end of the sidewalk rather than by her fall into the alley. It is mere conjecture to say that her injuries were caused by slipping into the obstruction and falling, rather than by slipping into the alley and falling. It would be merely a guess to say that, except for the extension of the curb into and above the level of the sidewalk, appellant would not have been injured. Appellant, therefore, did not sustain the burden of proving that any defective condition of the sidewalk, or that any rough ice from drainage, caused or contributed to her fall and resulting injury.
Appellant is confronted by another rule of law. We have said that the evidence indicates that appellant slipped on the smooth, slippery ice which formed on the sidewalk from the freezing rain; that she lost her balance and slid toward the alley, where she fell and
“If the injury may have resulted from one of two causes, for one of which and not the other, the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result, and if the evidence leaves it to conjecture, the plaintiff must fail in his action.” [Warner v. St. Louis & Meramec Railroad Co., 178 Mo. 125, 134, 77 S. W. 67; State ex rel. Trading Post Co. v. Shain, 342 Mo. 588, 593, 116 S. W. (2d) 99, 102; Cole v. Ulmann Grain Co., 340 Mo. 277, 100 S. W. (2d) 311, 317; Hayes v. S. S. Kresge Co. (Mo. App.), 100 S. W. (2d) 325, 329.] It is apparent from the testimony that the entire question of proximate cause is left in doubt, conjecture and uncertainty and that even appellant herself does not know what caused her fall. The testimony does not show with reasonable certainty that either the rough ice on the last section of the sidewalk, or the obstruction caused by the extension of the curb above the sidewalk, caused or contributed to appellant‘s fall in the alley. Nor does it show that her fall was not caused by slipping on the smooth ice and losing her balance before she even reached the location of the rough ice or the obstruction formed by the curb.
The demurrers to the evidence were therefore properly sustained. The judgment is affirmed. Hyde and Bradley, CC., concur.
PER CURIAM: - The foregoing opinion by DALTON, C., is adopted as the opinion of the court. All the judges concur.
WILLIAM D‘OENCH, Appellant, v. M. E. GILLIOZ ET AL. 139 S. W. (2d) 921.
Division One, May 7, 1940.