Opinion
No. 21823.
June 1, 1953.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, DUVAL P. STROTHER, J.
Gene J. MacElhern, Thomas E. Hudson and Hudson, Whitcraft Cavanaugh, Kansas City, for appellant.
Rayburn L. Foster and Harry D. Turner, Bartlesville, Okl., H. H. Booth and Warren R. Anderson, Kansas City, for respondent.
Plaintiff sued Phillips Petroleum Company and Kansas City, Missouri, for recovery of damages for personal injuries. At the close of plaintiff's evidence Kansas City was dismissed. The jury found the issues for defendant, Phillips Petroleum Company, and plaintiff appeals.
Plaintiff and Mrs. Nusbaum were walking west, on the south side of 47th Street, in Kansas City, and approaching Broadway. Defendant, Phillips Petroleum Company, maintained a filling station, located on the south side of 47th and on the east side of Broadway. There is no sidewalk on either side of the filling station, fronting Broadway and 47th, because of the entrance, or driveway, of the station; but there is a small section of sidewalk, an "island," extending for a few feet along 47th, westward to the Broadway intersection. Plaintiff and her companion walked westward, along the north edge of the concrete driveway, some distance, then walked diagonally through said station driveway, southwesterly, toward Broadway. It was their intention to cross Broadway to the Muehlebach store, located west of the filling station.
It was a nice day, the pavement was dry, and plaintiff had good vision. The concrete driveway was of a light color and the pavement of Broadway was dark and oily. Plaintiff stated that she noticed the difference in color, when she was about 4 or 5 feet from the point where she fell, which was about 35 feet south of the corner of Broadway and 47th but that the surface looked level. Plaintiff said that she was just stepping along, normally; that she did not see any "step down" at the junction of the driveway and the street; that there was nothing to prevent her from seeing it, if she were looking at it, as she was, but that she failed to see it; that she was watching traffic, looking for "clearance" to cross Broadway.
She stated that, when she reached the edge of the driveway, she put her right foot forward, and stepped into the street; that her right ankle turned; and that she fell, thereby sustaining the injuries of which she complains. She stated that she did not notice, prior to her fall, that the driveway was higher than the level of the street which, she claims, was the cause of her fall; that, after she fell, she saw that the driveway appeared to be about 2 1/2 to 3 inches higher than the street level.
Photographs were introduced which, witnesses stated, showed the situation with reference to the difference between the level of the driveway and the street. It was also shown that, when the driveway was built, it was constructed so as to be when completed 1 5/8 inches higher than the level of the street, where the two met and joined.
Her deposition had been taken and the following therefrom was read to her on cross-examination: "Q. Well, was there any reason why you couldn't see it if you looked down? A. Well, the only reason I couldn't see it was because I wasn't given no notice." She was asked if she gave the above answer, to which she replied that she wouldn't say, either way.
Plaintiff contends that Instruction No. 3 was prejudicially erroneous. The portion criticized is as follows. "* * * if you find from the evidence that said raised portion of the sidewalk was dangerous and unsafe for pedestrian travel, if you so find, and you further find from the evidence that plaintiff was injured as a result of falling over or on said raised portion of the sidewalk, still if you believe from the evidence that plaintiff knew of said place and the danger of using same, or by the exercise of ordinary care on her part could have known of it, and that plaintiff attempted to pass over said point without using reasonable care and such failure contributed to cause her injury, if she suffered injury, then the plaintiff is guilty of contributory negligence * * *."
Plaintiff says the instruction is erroneous because plaintiff was, by its direction, deprived of her legal right to rely upon the presumption that the sidewalk was in a reasonably safe condition for travel by day or by night, in the absence of knowledge or notice of a dangerous condition; and that the jury was also told that plaintiff was bound to use her eyes and senses to protect herself from such a danger or she could not recover. She cites, as authority for her contention, the case of Smith v. Kansas City, Mo.Sup., 184 S.W. 82, 83.
The opinion in that case unquestionably sustains plaintiff's contention. It directly, and unqualifiedly, attacks the majority opinion in Ryan v. Kansas City, 232 Mo. 471, 134 S.W. 566, 985; and the rule announced by Judge Kennish, dissenting from the majority opinion in the Ryan case, is copiously quoted and favorably commented upon. However, in Sloan v. American Press, 327 Mo. 470, 37 S.W.2d 884, 889, the Supreme Court held that the Smith decision, the opinion having been written by Woodson, J., and having been concurred in, as to result, by three other justices, did not have the legal effect of overthrowing and overruling the main opinion in the Ryan case; and it was said that Kennish, J., although concurring in the decision, stated in a strong separate opinion, that it is not "* * * now claimed to be the law, that a footman may go along the sidewalk carelessly, paying no attention to where he is walking, so that he would fail to see plain and obvious obstructions". The court also said that it was declared in O'Neill v. City of St. Louis, 292 Mo. 656, 663, 239 S.W. 94, 96, that the weight of authority is in harmony with what is said in the Ryan case insofar as it differs from what was said in the Smith case. The Ryan case was recognized as controlling law in Young v. City of St. Louis, Mo.App., 178 S.W.2d 641, 647 et seq., and Instruction 3 is quite similar to one given and approved in Cordray v. City of Brookfield, 334 Mo. 249, 65 S.W.2d 938. Plaintiff's contention, as to this point, must be overruled.
Plaintiff also says the instruction is erroneous because it: "* * * permitted the jury to find against plaintiff if the raised portion was in any wise dangerous and unsafe for pedestrian travel whereas the law as recently affirmed in the case of Jones v. Kansas City (Mo. Supreme) 243 S.W.2d 318, 323, was declared to limit the jury's consideration to any condition dangerous and unsafe for pedestrian travel by one in the exercise of ordinary care for her own safety." (Italics ours.) It is urged that, since the condition was not shown to be so unsafe as to render one using it guilty of negligence as a matter of law, it was error to so instruct.
If the instruction means what plaintiff says it does, then it is erroneous; but it does not mean that. The instruction required the jury to find that plaintiff failed to use reasonable care for her own safety, before it could find against her, even though it found that plaintiff knew or, by the exercise of ordinary care, could have known, that the condition was dangerous and unsafe for pedestrian travel. It meets the test laid down in the Jones case. Nor did the instruction authorize a verdict against plaintiff on a finding, merely, that she attempted to use the sidewalk, knowing of its dangerous condition. It required that the jury find that she: "attempted to pass over said point" (when she knew or could have known of its dangerous condition) "without using reasonable care, and such failure contributed to cause her injury * * *." Plaintiff cites and relies on Newberry v. City of St. Louis, 335 Mo. 1, 70 S.W.2d 546, as also sustaining her contention on this point. The instruction there condemned required that the jury find only that plaintiff knew or could have known of the dangerous condition and, nevertheless, walked over it. The court held that she was guilty of negligence in walking over it, knowing of its condition, only if she failed to watch and give the attention required of an ordinarily prudent person.
Plaintiff contends that there was not sufficient evidence of her negligence to justify submission of that issue. The accident occurred in daylight, on a sunshiny day. Plaintiff's vision was good and unobstructed. She saw, when several steps from it, the point of juncture of the driveway and street, and noticed the difference in color at that point. She said she did not see that the street was lower than the level of the driveway. She stated in her deposition that the reason she did not notice the "step-off" was that she had no notice. These were facts sufficient for the jury to find contributory negligence on the grounds that she knew or, by the exercise of ordinary care, could have known of the defect. "Contributory negligence may be inferred from the circumstances in a case of this kind, or a jury may find from the circumstances that the plaintiff was not guilty of contributory negligence." Ward v. City of Portageville, Mo.App., 106 S.W.2d 497, 503.
Plaintiff says defendant pleaded the issue of contributory negligence specifically but submitted it generally. The issue is, in effect, submitted in similar language in plaintiff's main Instruction I. Plaintiff, therefore, is in no position to complain. Murphy v. Duerbeck, Mo.Sup., 19 S.W.2d 1040, 1043.
The judgment should be affirmed.
BOUR, C., Concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed.
All concur.