Opinion
No. 27974.
June 19, 1951. Rehearing Denied July 6, 1951.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, HARRY F. RUSSELL, J.
Edward H. Tenney, Jr., William H. Dahman, and Harold F. Porter, Jr., all of St. Louis, for appellant.
Orville Richardson, Leland Jones, and Hullverson Richardson, all of St. Louis, for respondent.
This is an action for damages for personal injuries sustained by plaintiff, Lucretia C. Krause, in a fall upon an icy sidewalk bordering a restaurant operated by defendant. Laverne Park Association, at 6307 Michigan Avenue, in the City of St. Louis.
The restaurant, which is known as the Kindergarten Grill, is located in a former school building on the southwest corner of Michigan Avenue and Iron Street. Michigan Avenue runs north and south, and Iron Street east and west. The building stands from 35 to 40 feet back from the sidewalk in what was formerly the schoolyard, and has two entrances, one from each of the streets upon which it faces. A path or walkway extends from each entrance to the edge of the yard, where there are steps leading down to the sidewalk below.
The accident happened around 7:30 o'clock on the night of January 29, 1949.
The weather throughout the preceding week had been cold and rainy, and had produced an icy condition which was widespread throughout the entire community. Defendant's vice-president and general manager, one Pijut, together with the janitor, Rick, had attempted to clear the ice from the sidewalk and steps at the restaurant property on the very day of the accident. In endeavoring to accomplish their purpose they had used a hand scraper to chop the ice, and had then scattered salt to melt the small patches of ice that adhered to the concrete after the broken pieces were shoveled away. On the Iron Street side a path had been cleared across the yard to the entrance into the building, and the ice had been removed from the sidewalk for a distance of about 15 feet to the immediate west of the steps. However from this point on to the west the sidewalk remained completely packed with ice, which was described as being smooth at some places and rough at others. As a matter of fact, the question at issue in the case was whether Pijut and Rick, in unsuccessfully undertaking to clean the entire sidewalk, had been responsible for creating the roughened surface on the portion of the sidewalk from which the ice was not removed.
On the occasion in question plaintiff had driven to the restaurant in an automobile with her cousin, Catherine White, and the latter's five-year-old daughter to pick up some sandwiches that had been previously ordered by telephone. Parking their automobile on the south side of Iron Street quite some distance to the west of the entrance to the restaurant, they walked along the sidewalk to the steps leading down from the pathway which had been cleared across the yard into the building. After obtaining their sandwiches, they left the restaurant and retraced their steps; and it was while passing over the portion of the sidewalk that was still packed with ice that plaintiff fell and was caused to receive a serious injury to her left arm. It was her theory that while feeling her way over the ice, her foot had come in contact with a ridge or rough area in the ice, which had caused her to lose her balance and sustain her fall.
The case was pleaded and submitted upon the theory that defendant, through its agents, Pijut and Rick, in attempting to remove the ice from the sidewalk had negligently created ridges, bumps, and uneven spots where none had been before, and that by reason of such negligence the sidewalk had been rendered more hazardous and dangerous than had been its condition prior to the attempt to remove the ice. It was of course a further part of plaintiff's theory that it was because of the existence of such ridges, bumps, and uneven spots that she had been caused to fall and sustain her injury.
The answer was a general denial together with a plea of contributory negligence, which is not in issue on this appeal.
At the outset of the case the named defendants in addition to Laverne Park Association, which was in possession of the premises, were Pijut and his wife, Barbara, along with one Roy L. Tarter and his wife, Minerva, the owners of the property. However at some point in the case before the taking of testimony was begun, it appears that plaintiff dismissed or abandoned her case as to all four individual defendants, and elected to proceed against defendant, Laverne Park Association, alone.
The jury returned a verdict in favor of plaintiff, and against defendant, Laverne Park Association, for the sum of $1,500. In due time defendant filed its motion for judgment in accordance with its previous motion for a directed verdict. The court sustained such motion and caused judgment to be entered in defendant's favor, whereupon plaintiff gave notice of appeal, and by proper successive steps has caused the case to be transferred to this court for our review.
The whole question on this appeal is whether there was evidence to make a case for the jury upon the question of defendant's liability for plaintiff's injury under the theory of negligence upon which plaintiff relied.
There is no doubt of the general rule that when an abutting property owner or occupant, for his own private purpose or convenience, affirmatively changes the situation with respect to the condition of a sidewalk or otherwise renders its use hazardous by something he does upon or about it, the law will impose upon him the duty to use reasonable care to guard the public from injury.
So it is that while an owner or occupant is under no liability for an injury attributable to the presence of snow and ice on the sidewalk in front of his premises as the result of purely natural causes, he may nevertheless be held liable if he himself has contributed to the hazard, as by causing an artificial accumulation and discharge of water on the sidewalk which freezes and renders the sidewalk dangerous, or by aggravating the general, natural spread of ice or snow so as to produce a special danger. Luettecke v. City of St. Louis, 346 Mo. 168, 140 S.W.2d 45; Stith v. J. J. Newberry Co., 336 Mo. 467, 79 S.W.2d 447; Morgan v. Kroger Grocery Baking Co., 348 Mo. 542, 154 S.W.2d 44.
It was plaintiff's theory that by allegedly chopping on the ice in an attempt to remove it, and by causing its surface to be roughened to some extent or at least altered from the condition in which nature had left it, defendant was guilty of actionable negligence so as to make it responsible for the consequences of her fall when her foot came in contact with a ridge or rough area in the ice. This would necessarily presuppose two additional factors, the one, that the ridge or rough area with which her foot came in contact had been created by defendant, and the other, that the creation of ridges or rough areas of that nature in what had otherwise been a slick surface had served to make the sidewalk more difficult to walk upon, and had thereby increased the hazard to which plaintiff was exposed.
As against such theory it might at least be argued that people generally attempt to remove ice from sidewalks in the precise manner which Pijut and Rick had employed on the occasion in question; that there is nothing inherently dangerous in such practice; and that proof of such action in conformity with universal custom and usage could not be permitted to supply the basis for an inference of lack of due care. In other words, it is highly questionable whether, in the eternal contest between man and the elements, and especially when man, as in this case, is undertaking to comply with the requirements of a city ordinance enacted for the protection of all the public, he should act at his peril and be held guilty of negligence because the forces of nature have proved too strong for him to overcome.
As it happens, however, there is no such question for our decision because of the lack of evidence that Pijut and Rick had in any manner chopped upon or altered the condition of the ice at the point on the sidewalk where plaintiff fell.
Plaintiff had three witnesses, herself, Catherine White, and Pijut.
The most that she and Catherine White could say was that the ice was smooth at some places and rough at others, with ridges, bumps, or "dents" as Catherine White described them, which, in her language, meant the same as ridges and bumps.
But Pijut, when he was called upon to testify as a witness for plaintiff, left no doubt as to what he and Rick had done in attempting to remove the ice. He explained that because of the presence of a retaining wall between the sidewalk and the schoolyard along the area where plaintiff fell, and also because of trees along the sidewalk, the ice on that particular portion of the sidewalk had not been subjected to enough sunlight to soften it to the point that it could be cleared away. Where conditions were different near the entrance to the yard, he and Rick had succeeded in removing the ice, but beyond a distance of 15 feet, they had been unable to go. Leaving this point and going west to the alley, they had attempted to work back towards their starting point, but had again found the ice impossible to remove. Pijut was explicit that he and Rick had not undertaken to chop beyond the point where they had actually cleaned the sidewalk, and that they had done no chopping of any sort at the place on the sidewalk where plaintiff fell.
The fact that Pijut was plaintiff's own witness would not have precluded her from introducing other evidence contradictory of what he had said, if such evidence had been available, and she had elected to make use of it. Talley v. Richart, 353 Mo. 912, 185 S.W.2d 23; Mollman v. St. Louis Public Service Co., Mo.App., 192 S.W.2d 618. However Pijut was not contradicted; and plaintiff is therefore bound and concluded by his testimony, even though its effect was to disprove her claim and relieve defendant of all liability. Klotsch v. P. F. Collier Son Corporation, 349 Mo. 40, 159 S.W.2d 589; Mississippi Valley Trust Co. v. Francis, Mo.App., 186 S.W.2d 39.
What plaintiff relies upon is certain general statements of Pijut to the effect that he and Rick had "tried" to clean the sidewalk, and from which she would have inferred that they had chopped at the very point where she fell. As we have already pointed out, Pijut elsewhere made it clear that while he and Rick had indeed "tried" to clean the entire sidewalk in the sense of starting out with that intention, they had found it impossible to do so, and had done no chopping beyond the point 15 feet immediately west of the steps. The law does not permit the drawing of forced and violent inferences which do not arise from a reasonable interpretation of the facts actually shown. Bushman v. Barlow, 316 Mo. 916, 292 S.W. 1039; Williams v. Kansas City Southern Ry. Co., 257 Mo. 87, 165 S.W. 788, 52 L.R.A., N.S., 443; Douglas v. National Life Accident Ins. Co., 236 Mo.App. 467, 155 S.W.2d 267.
It follows that the judgment rendered by the circuit court should be affirmed, and it is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.