Certiorari to the judges of the St. Louis Court of Appeals wherein relator seeks to have quashed, for alleged conflict, the opinion of said court in the ease of Cuddy v. Shell Petroleum Corp. et al.,
The facts pertinent to the limited inquiry with which we are concerned, and as found in the opinion under scrutiny, may be summarized as follows: The filling station is located at the Southwest corner of Kingshighway and Wells Avenue; the former runs north and south, and the latter east and west; the property was acquired by Shell in September, 1929; the sidewalk, which was six feet in width (exclusive of the parkway between the walk and curb) was constructed in 1922; the part whereon plaintiff fell and was injured runs along the Wells Avenue side and forms a sloping driveway into the filling station, the vertical pitch or cross-grade thereof being seven and six-tenths inches in the width of the sidewalk, or six feet horizontal distance. (Plaintiff pleaded an ordinance of the city providing that no sidewalk shall be constructed with a cross-grade “greater than one-half vertical rise to one'foot horizontal distance.”) The driveway existed at the time in question just as it was when constructed in 1922, no changes having been made therein.
Plaintiff was injured' on or about March 13, 1937, as she was walking over the driveway portion of the sidewalk covered at the time with snow beneath which ice had packed. She testified she stayed to the center of the driveway “where it looked level,” and that while crossing her foot “gave away” 'and she slipped down “because it was very slanty;” that the grade of the driveway was “very steep, because you have a time walking over it when it is dry.” Defendant O’Reilly leased the property in October, 1935, under a lease from Shell for a term of one year, and from year to *846 year thereafter unless sooner terminated, but Shell did most of the repairing and maintenance of the place. Their truck called three times a week for that purpose. An attendant at the station, called by defendants, testified he had occasion to clean the public sidewalk three times on the day in question; that he observed the ice which had formed on the sidewalk at that point. On cross-examination, referring to the driveway in question, he testified:
“Q. You say it is steep, don’t you? A. Yes, sir.
“Q. And you recognize the fact, don’t you, that a steep driveway with ice on it is dangerous to people walking on it? A. Yes, sir.
“Q. Yes. You know that, don’t you? A. Yes.
“Q. You had plenty of opportunity, then, to find out whether there was any ice on the driveway, didn’t you? A. Yes, sir.
“Q. Was there ice on the driveway? A. Not that I know of.
“Q. You don’t know whether there was or not. Is that right? A. That’s right. Water from snow or ice or anything else would naturally run down the driveway, and, if it was cold enough, it would freeze.
“Q. And that was during all the time you worked there, wasn’t it? A. Yes, sir; that condition existed. I didn’t put any snow which I had shoveled from the sidewalk on the driveway. I pushed it off to each side of it there.
“Q. Now, it would not have been difficult to get the ice off, would it? A. No, sir.”
On the foregoing facts the Court of Appeals held that “although Shell did not originally construct the sloping driveway in the sidewalk, it did, for its own purposes, maintain the driveway in the sloping condition it was in when plaintiff fell thereon . . . ” and that “reasonable minds would differ on whether the driveway was maintained in a reasonably safe condition for the use of pedestrians using the public sidewalk through which the driveway was maintained, and the question was therefore one for the jury to determine.” In so holding it is charged, as the first assignment, that the opinion announces a rule of law which is in conflict with the following cases: Callaway v. Newman Mercantile Co.,
In none of the cases relied on by relator was there involved anything in the nature of ah artificial condition maintained by, or for the convenience of the abutting owner, except Callaway v. Newman Mercantile Co., supra. In that case a steel frame with glass prisms had been installed in the sidewalk to give light to the basement of a store which extended underneath the walk. This was done in accordance with specifications prescribed by the city. Plaintiff therein was injured when she caught her heel in a hole, caused by one of the prisms having been previously broken out. There was no evidence that there was anything inherently dangerous in the original construction of the sidewalk, or in its plan. The court recognized that the particular construction there involved afforded some private and personal convenience to the abutting property owner, but it was not considered as differing from that frequently used in all cities, especially in a business district. The following excerpts sufficiently indicate the reasoning of that case: “When the sidewalk was originally constructed and completed, it afforded a smooth, unbroken, level surface, entirely free from anything in the nature of an obstruction or opening, whereby a pedestrian might encounter any *848 danger from tripping or falling. The mere fact that some of the glass prisms may have broken and fallen from the steel framework of the sidewalk . . . does not . . . differentiate the instant case from one wherein planks or stringers may have been broken and loosened, or entirely removed, from a wooden sidewalk . . . ; nor . . . does the system or plan of construction of the sidewalk herein call for the application of another and different rule or principle of law than that which is applied ... in the case of the disrepair of a wooden, brick or flagstone sidewalk. . . . Regardless of the incidental and secondary use and convenience to the defendant herein, it is clearly evident that the sidewalk structure was intended and primarily constructed as and for a public sidewalk, and for no other purpose foreign to such use.”
The ramplik# incline of 7.6 inches in six feet in the driveway portion of the sidewalk in question was maintained for the benefit and convenience of the owner or occupant of the abutting premises, affording extraordinary use of the sidewalk for purposes other than as a sidewalk, and this is sufficient to differentiate the ease from those relied on by relator, including the Newman Mercantile Co. case. The decision in the latter case was by a divided court (four to three).
We
will not re-examine the merits of the question there presented, but it may be observed that the case does seem to be contrary to the decided weight of authority [See cases cited in Mo. Law Review, Vol. 6, p. 124. Those involving glass prism inserts are Niehaus v. Caryfield, Inc.,
Relator’s next contention is that, since the jury’s exoneration of defendant O’Reilly has become final, the judgment against relator may not be sustained, and in remanding the cause for nei^ trial against relator respondents’ opinion conflicts with our rulings in Stephens v. D. M. Oberman Mfg. Co.,
“The rule adopted by a majority of the courts which have considered the question, which is a logical deduction from the doctrine of respondeat superior, is thus stated: ‘Where the relations between two parties are analogous to that of principal and agent, or master and servant, the rule is that a judgment in favor of either, in an action brought by á third party, rendered upon a ground equally applicable to both, should be accepted as conclusive against the plaintiff’s right
*849
of action against the other.’ ” Annotations, 78 A. L. R. 365; 54 L. R. A. 649. See authorities cited in Stoutimore v. Atchison, T. & S. F. Ry. Co.,
Turning now to the assignment of conflict urged by counsel for respondents who represented the plaintiff below, we adopt, with minor alterations, and quote (omitting customary marks) that portion of the opinion prepared in division, as follows:
Plaintiff says respondents’ ruling that relator’s plea (“ ‘whatever injuries, if any, were sustained by plaintiff on the occasion in question, by and on account of the matters and things in said petition contained and set forth, were caused by the negligence and carelessness of plaintiff directly contributing thereto.’” [127 S. W. (2d) l. c. 26]), although general, was a sufficient plea, absent attack, of contributory negligence conflicts with • controlling decisions of this court. Respondents based said ruling upon that portion of State ex rel. Hopkins v. Daues (Banc, 1928),
Harison v. Missouri Pac. Ry. Co. (Banc, 1881),
Benjamin v. Metropolitan St. Ry. Co. (Banc, 1912),
The Harrison and Benjamin cases do not rule a general charge of contributory negligence, absent attack, insufficient.
Harrington v. Dunham (Div. II, 1918),
Kramer v. Kansas City P. & L. Co. (Div. II, 1925),
The rulings in the divisional opinions of the Harrington, Heriford, Keppler and Hanke cases, supra, have their foundation in the second observation arguendo, quoted supra, from the Benjamin case. We have pointed out that correctly understood the Benjamin case did not rule a general plea of contributory negligence, absent attack, insufficient. ,So far as material here Sec. 916, R. S. 1939 [Sec. 764, Mo. Stat. Ann., p. 983], provides that a plaintiff’s petition shall contain "a plain and concise statement of the facts constituting a cause of action” and Sec. 928, R. S. 1939 (Sec. 776, Mo. Stat. Ann., p. 1015), provides that a defendant’s answer shall contain- "a statement of any new matter constituting a defense ... in ordinary and concise language.” A plaintiff’s petition and a defendant’s answer for the purposes of charging negligence are placed upon the same footing; and justice requires that courts not make fish of one and flesh of the other litigant in ruling on the sufficiency of charges of negligence in a petition and in an answer. (See the reasoning in the Harrison case, supra.) This accords with the holding in the Hopkins and Kincaid cases, supra. The divisional opinions herein-before mentioned cannot be regarded as authoritative insofar as they conflict with the later decision of the court en bane in the Hopkins case and the Kincaid case (Div. II), which follows the Hopkins case.
Our writ having been improvidently issued should be quashed, It is so ordered.