Opinion
No. 43109.
July 14, 1952. Rehearing Denied September 8, 1952.
APPEAL FROM THE STODDARD COUNTY CIRCUIT COURT, J. V. BILLINGS, J.
Robert C. Hyde, J. Lee Purcell, Poplar Bluff, Briney Welborn, Bloomfield, of counsel, for appellant.
Cope Ponder, Poplar Bluff, for respondents.
Plaintiff Myrtle Clark sustained injuries when she tripped upon and fell over a three inch iron gas pipe lying across a public sidewalk in the City of Poplar Bluff. Alleging that the pipe was negligently placed and permitted to remain across the walk by defendant's servants, she and her husband, C. B. Clark, jointly brought this suit, she to recover for her injuries and he to recover for loss of services and society and for medical expenses.
The suit, brought in Butler County, went on change of venue to Stoddard County, where, upon trial, plaintiff Myrtle Clark received a verdict for $5,000 and plaintiff C. B. Clark received a verdict for $2,000. From the judgment rendered thereon, defendant appealed to the Springfield Court of Appeals, which affirmed it. 245 S.W.2d 685. Upon petition of defendant, the cause was transferred to this court.
Defendant admits that a submissible case of negligence was made against it, but contends that Mrs. Clark was guilty of negligence as a matter of law, thereby barring recovery by either plaintiff.
In Poplar Bluff, D Street extends north and south and is intersected by Marion Street, extending east and west. Plaintiffs' home, facing west, is situated on the east side of D Street in the first block north of its intersection with Marion. Between their home and Marion Street is, first, a vacant lot and next the home of Mr. and Mrs. Earl Groves, which also faces west.
Plaintiff had known for about two weeks prior to the time she was injured that defendant was engaged in digging ditches and laying gas pipes in that section of Poplar Bluff and that, in so doing, it had dug a ditch along Marion Street and turned its work northward on the east side of D Street, but had not reached plaintiffs' home.
On the evening of March 30, 1950, at dusk and shortly before 7:00 o'clock, Mrs. Clark, as was her almost nightly custom, left her home to walk to the home of her sister, which is also situated on D Street, something less than a block south of its intersection with Marion. As she walked southward along the concrete sidewalk on the east side of D Street and came near its intersection with the north line of Marion, she saw the gas pipe lying across the sidewalk and up into Mrs. Groves' yard and stepped over it. It was not lying flat on the walk due to the elevation of Mrs. Groves' yard. There was sufficient space between it and the sidewalk to permit one's toe to go under it. Mrs. Clark could not estimate its length but plaintiffs' evidence showed it to be made up of several welded pieces having a total length of sixty or seventy feet and to extend from an open ditch along the east side of D Street, across the sidewalk and into the Groves yard.
Mrs. Clark left her sister's home about 9:15 that evening. It was then dark and cold, not snowing or raining. She returned northward along the same route she had initially taken, walking "not very fast" and in her usual and accustomed manner. As she walked along, she was "looking ahead", "looking down the sidewalk", looking "in front", "trying to watch where [she] was going". After she crossed Marion Street and was walking on the sidewalk beyond the point where it crossed over the ditch on the north side of Marion, her toe caught under the gas pipe, causing her to stumble and fall.
The pipe was in the same position as when she saw it as she went to her sister's home. Nothing unusual had occurred to distract her attention and she was "just thinking about going home and get in the bed and that was all". She "just forgot about" the pipe.
She was asked the following question and gave the following answer:
"Q. State to the jury if there were any flares or lights to warn people that may travel that sidewalk? A. No, sir, it was dark and they had no lights at all, but there was a little old street light there, about a hundred watt bulb, but the trees shaded it so you couldn't see the pipe line."
Plaintiffs' witnesses described the trees as being large. They were then budding, but not in leaf. One witness said they would "more or less" shade the walk where the pipe lay. Another said the street light gave a "good deal of light, but the tree limbs were there."
Mr. and Mrs. Earl Groves testified in behalf of plaintiffs that they saw the pipe lying across the sidewalk in the position above described at work-quitting time (about 4:30 p. m.) and observed and commented upon its being dangerous; and that there were no workmen around then or thereafter and no flares were put out.
Mrs. Clark identified Defendant's Exhibit 2 as a true picture of the northeast corner of the intersection of D and Marion Streets. It is here attached:
The camera is pointed slightly north of east. The house in the left background is the Groves home. In the foreground is the city light pole. The light is not shown, but the testimony was that the light was above the transformer shown on the pole. Another tree, not shown in the picture, is some distance north of the pole.
Mrs. Clark pointed out on the exhibit where the pipe lay and stated that she had crossed over the ditch that ran under the sidewalk when she stumbled over the pipe. Mrs. Groves testified that the pipe lay about two feet north of the ditch and about six or eight feet south of the light pole. Plaintiff C. B. Clark testified it was six feet north of the ditch.
For the reasons hereinafter stated, we have concluded that Mrs. Clark was guilty of contributory negligence as a matter of law.
When Mrs. Clark walked to her sister's home at about 7:00 p. m., she saw and stepped over the pipe. She saw its size and noted its position and location. Reasoning minds could not differ as to its being a dangerous obstruction upon the sidewalk, especially after dark. Plaintiffs' witnesses so described it. Its size and position were such that any pedestrian who did not see it would necessarily stumble upon it. To avoid doing so, any pedestrian would be forced to purposely step over it. It was then dusk and well after working hours. The workers had left around 4:30 p. m. Under such circumstances, Mrs. Clark, in the exercise of ordinary care for her own safety, could not assume the pipe would be removed before her return.
Within little more than two hours she walked homeward along the same route with which she was so thoroughly familiar. She was in no hurry; nothing distracted her attention; nothing unusual occurred; she walked in her usual manner, looking in front of her as one who assumes the sidewalk to be safe. In this instance, the exercise of ordinary care required more of her.
At one point in her testimony, Mrs. Clark said that the trees kept her from seeing the pipe. It is clear she did not mean that statement to be taken literally. It could not be seriously contended she could not have seen it had she exercised the care that the circumstances and her knowledge required. The facts and the photograph show otherwise. The pipe lay within six or eight feet of the pole to which the light was attached. Of course, the tree limbs and buds would to some extent obscure her vision of it, but even plaintiffs do not contend she could not have seen it had she carefully looked for it; which, concededly, she did not do.
In the case of O'Neill v. City of St. Louis, 292 Mo. 656, 239 S.W. 94, the facts were: There was an open meter box in the sidewalk. Plaintiff knew of its location and knew it was dangerous to pedestrians. On her way to church at about 8:00 p. m., she stepped into the open box, although had she been looking she could have seen it. The court said, 239 S.W. loc. cit. 96: "But the case at bar is not one where the plaintiff had no knowledge of the defective condition. She admits knowledge, and admits that, if at the time of injury she had been looking, she could have seen and avoided the dangerous place, which was the occasion of her injury. This is her solemn admission of record. In such a case ordinary care would have required her to have been upon a lookout for the dangerous place of which she had knowledge. Her admitted failure constitutes contributory negligence as a matter of law."
To the same effect are Waldmann v. Skrainka Const. Co., 289 Mo. 622, 233 S.W. 242, and the cases therein cited; Lamberton v. Fish, Mo.Sup., 148 S.W.2d 544. See also Goldman v. City of Columbia, Mo.App., 211 S.W.2d 541; Hamra v. Helm, Mo.App., 281 S.W. 103.
The cases cited by plaintiffs tend to exemplify the rule above stated rather than to destroy or modify it. The essential holding in each of those cases is that knowledge of a defective sidewalk does not alone render the pedestrian using it guilty of contributory negligence as a matter of law unless the defect is of such a nature as to render it necessarily and obviously dangerous to an ordinarily careful person. See Cordray v. City of Brookfield, 334 Mo. 249, 65 S.W.2d 938; Butler v. City of University City, Mo.App., 167 S.W.2d 442; King v. City of De Soto, Mo.App., 89 S.W.2d 579; Wyckoff v. City of Cameron, Mo.App., 9 S.W.2d 872; Heberling v. Warrensburg, 204 Mo. 604, 103 S.W. 36; Fischer v. St. Louis, 189 Mo. 567, 88 S.W. 82. In those cases the sidewalk, although defective by reason of a rough, broken, uneven or depressed surface, was regularly used and was not necessarily and patently dangerous.
The distinction is well stated in Butler v. City of University City, supra, wherein, after quoting the rule above set forth, the court said, 167 S.W.2d loc. cit. 446: "For knowledge of a condition to operate to exclude the application of the rule in a given case, there should be a present awareness of the defect and a realization of its dangerous nature, [Citing case] or the defect should be of such a striking character that no reasonable person who had previously observed it would come into close proximity with it without recalling it to mind."
Here was an obstruction of striking proportions lying from the D Street curbline across the sidewalk and into the Groves yard. Any reasonably careful pedestrian would of necessity know that it must be purposely avoided or collision with it was inevitable. In such a case, ordinary care requires a higher degree of diligence in proceeding along a sidewalk known to be dangerous than is required in proceeding along a sidewalk known merely to be defective.
Although knowing at the time she saw the obstruction that shortly thereafter on the same evening she would be confronted with it and knowing its location and how to avoid it, Mrs. Clark "just forgot about it". Under such circumstances, forgetfulness, when nothing has occurred to distract the mind, does not excuse. Waldmann v. Skrainka Const. Co., 289 Mo. 622, 233 S.W. 242; Goldman v. City of Columbia, Mo.App., 211 S.W.2d 541; 38 Am.Jur., "Negligence", § 187, p. 863.
The judgment of the circuit court is reversed.
All concur.