Opinion
July 23, 1940.
1. MUNICIPAL CORPORATIONS: Slippery Sidewalks. The general rule is that a city is not liable for injuries sustained because of a slippery sidewalk if that condition was a part of the general condition of snow and ice in the city.
But where the slippery condition complained of is an isolated one by reason of special surroundings or because of a local accumulation of snow and ice, it is the duty of the city to exercise reasonable care to remedy such condition.
2. MUNICIPAL CORPORATIONS: Slippery Sidewalks. A city is not required to remove snow and ice from its sidewalks where such condition is general throughout the city.
But where snow accumulates on the sidewalk to such an extent that it produces a dangerous condition, not common to the general condition throughout the city, it is the duty of the city to exercise reasonable care to remedy such condition.
3. MUNICIPAL CORPORATIONS: Slippery Sidewalks. In an action for injuries to plaintiff caused by his falling on a slippery sidewalk where the condition of the sidewalk at the place was not common to the general condition throughout the city, an instruction for plaintiff which required the jury to find the ice rendered the sidewalk not safe for travel and remained so at the place of the injury long enough to give notice to the city of its existence in sufficient time for the city in the exercise of ordinary care to have removed it before the injury occurred, was not erroneous as failing to require a finding that the dangerous condition of the sidewalk existed long enough to give the city notice.
4. MUNICIPAL CORPORATIONS: Trials: Admission of City Counselor. In an action against the city for injuries to plaintiff by falling on a slippery sidewalk, an admission by counsel for the city justified a holding by the court that he not only admitted timely service of notice to the city but sufficiency of notice of the injury.
5. EXCESSIVE VERDICT. Where plaintiff, fifty-six years of age, suffered an intra capsular fracture of the neck of the right femur, a broken hip, and was in a hospital for ten weeks and in bed for seven weeks, and thereafter was in a wheel chair, and then used crutches, his right leg permanently shortened an inch, a judgment for $10,000 was not excessive.
Appeal from Circuit Court of City of St. Louis. — Hon. John W. Joynt, Judge.
AFFIRMED.
Edgar H. Wayman and Jerome Simon for City of St. Louis.
(1) It is essential to plaintiff's cause of action to prove compliance with Section 7493, Revised Statutes 1929, regarding notice of accident. Sec. 7493, R.S. 1929; Cole v. St. Joseph, 50 S.W.2d 623; Shuff v. Kansas City, 257 S.W. 844; Kling v. Kansas City, 61 S.W.2d 411, 227 Mo. App. 1248; Rice v. Kansas City, 16 S.W.2d 659; Reid v. Kansas City, 192 S.W. 1047. (a) A municipality is not liable for injury resulting soley from a general condition of snow and ice where the condition complained of was not known to be unusual or unusually dangerous. Reedy v. St. Louis Brewing Assn. and City of St. Louis, 161 Mo. 523; Vonkey v. St. Louis, 219 Mo. 37; Albritton v. Kansas City, 192 Mo. App. 574, 188 S.W. 239; Armstrong v. Monett, 228 S.W. 771; Gist v. St. Joseph, 220 S.W. 722; Coy v. Kansas City, 243 S.W. 418; 25 Amer. Juris., p. 796; 13 R.C.L., p. 413; 7 McQuillin on Municipal Corp., p. 192; Broburg v. Des Moines, 63 Iowa 523; Huston v. Council Bluffs, 101 Iowa 33; Hyer v. Janesville, 101 Wis. 371, 77 N.W. 729; Jefferson v. Sault Ste. Marie, 166 Mich. 340; Johnson v. Evansville, 180 N.E. 600; Graham v. Chicago, 346 Ill. 638, 178 N.E. 911; Chase v. Cleveland, 44 Ohio St. 505; Kohler v. Penn. Tp., 305 Pa. 330, 157 A. 681; O'Donnell v. Butte, 65 Mont. 463, 211 P. 190; Wilson v. Idaho Falls, 17 Idaho, 425, 105 P. 1057; Evans v. Concordia, 74 Kan. 70. (2) The giving of plaintiff's main Instruction 1, which purported to cover the entire case and directed a verdict for plaintiff, was error. (a) This instruction was erroneous because it did not require the jury to find that an obstruction or an unsafe condition had existed sufficiently long to give notice to the city. (b) This instruction was erroneous because it did not tell the jury that the city was entitled to a reasonable time after notice of a dangerous condition to remedy the condition. Allen v. Kansas City, 64 S.W.2d 766; Pearce v. Kansas City, 156 Mo. App. 230, 137 S.W. 629; Quinlan v. Kansas City, 104 Mo. App. 618; Albritton v. Kansas City, 192 Mo. App. 574; Studer v. St. Joseph, 185 S.W. 1196; McMahon v. Greenspon's Sons Iron Steel Co., 267 S.W. 83; Wilson v. St. Joseph, 139 Mo. App. 564. (c) This instruction was erroneous because it was a comment on an isolated portion of the evidence and tended to confuse and mislead the jury by giving them an improper standard by which to determine negligence. Suttmoeller v. St. Louis, 230 S.W. 67; Anderson v. Kincheloe, 30 Mo. 520; Meyer v. Pacific Railroad, 40 Mo. 151; Fine v. St. Louis Pub. Schools, 39 Mo. 59; Jones v. Jones, 57 Mo. 138; Gibler v. Railroad, 129 Mo. App. 93; Zumwalt v. C. A. Ry. Co., 266 S.W. 717; C.I.T. Corp., v. Hume, 48 S.W.2d 154; Griffith v. Walesby, 91 S.W.2d 232. (d) An instruction which submits an issue to the jury which is not proven is erroneous. Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 1; Clarke v. Jackson, 116 S.W.2d 122; State ex rel. Banks v. Hostetter, 125 S.W.2d 835. (3) The verdict of the jury is excessive. Osby v. Tarlton, 85 S.W.2d 27, 336 Mo. 1240; Thompson v. Smith, 253 S.W. 1023; Ruppel v. Clayes, 72 S.W.2d 833. Al. F. Gerritzen and Henry J. Mueller for respondent.
(1) Timely notice of the accident was given by the plaintiff to the mayor of the city of St. Louis, as required by Section 7493, Revised Statutes 1929. Appellant's counsel, in the presence of the court and jury, admitted that notice was served on the mayor's secretary within the ninety-day period. (a) Proof of service of the notice required by Section 7493, Revised Statutes 1929, made on the mayor's secretary or the assistant city counselor is sufficient. Powers v. Kansas City, 18 S.W.2d 545; Peterson v. Kansas City, 23 S.W.2d 1045; Callahan v. Kansas City, 41 S.W.2d 894. (b) Admissions by counsel obviate the necessity of further proof on the subject matter of such admissions. Appellant, by counsel, having admitted the service of the notice required by Section 7493, Revised Statutes 1929, is estopped from asserting on appeal that no notice was served, or that there was not sufficient evidence as to the giving of said notice within the ninety-day period. Callahan v. Kansas City, 41 S.W.2d 896; Cole v. St. L.S.F. Ry. Co., 61 S.W.2d 344, 332 Mo. 999; West v. West, 110 S.W.2d 398; Reutner Klaus Co. v. Nelson Chesman Co., 9 S.W.2d 655; Schroeder v. Stadley, 261 S.W. 934; Pratt v. Conway, 49 S.W. 1028, 148 Mo. 291; Everett v. Marston, 85 S.W. 540, 186 Mo. 587. (c) Municipality is required to exercise ordinary care to keep its sidewalks in a reasonably safe condition, and is liable to one who, while properly using said sidewalks, suffers injury in consequence of an accumulation of rough and uneven ice, where such accumulation had been permitted to remain on said sidewalk for a longer period of time than on sidewalks generally throughout the city, and for such length of time so that the city could have removed it, and when such accumulation of rough and uneven ice rendered said sidewalk "not reasonably safe for travel." Barrett v. Canton, 338 Mo. 1082, 93 S.W.2d 930; Wood v. St. Joseph, 44 S.W.2d 249; Harding v. St. Joseph, 7 S.W.2d 710; Reno v. St. Joseph, 70 S.W. 126, 169 Mo. 642; Barker v. City of Jefferson, 155 Mo. App. 390, 137 S.W. 10; Quarles v. Kansas City, 138 Mo. App. 45, 119 S.W. 1019; Wolf v. Kansas City, 296 Mo. 95, 246 S.W. 236; Jackson v. Kansas City, 181 Mo. App. 178, 167 S.W. 1150; Squiers v. Kansas City, 75 S.W. 194, 100 Mo. App. 628. (2) The giving of plaintiff's main Instruction 1, which purported to cover the whole case and directed a verdict for plaintiff, was not erroneous, because it submitted to the jury every necessary element under the law and the evidence. Barrett v. Canton, 338 Mo. 1082, 93 S.W.2d 930; Snowden v. St. Joseph, 163 Mo. App. 667, 147 S.W. 494; Rice v. Kansas City, 16 S.W.2d 663; Squiers v. Kansas City, 75 S.W. 194, 100 Mo. App. 628. (3) Plaintiff's Instruction 1, purporting to cover the whole case, was not erroneous, because it did require the jury to find that the city had reasonable time after constructive notice, and before February 17, 1936, to have removed the ice from said sidewalk. Quinlan v. Kansas City, 104 Mo. App. 616, 78 S.W. 660; Acker v. Kansas City, 104 S.W.2d 1058; Wolf v. Kansas City, 296 Mo. 95, 246 S.W. 236; Drimmel v. Kansas City, 168 S.W. 285, 180 Mo. App. 339; Scanlan v. Kansas City, 19 S.W.2d 526; Wright v. Kansas City, 86 S.W. 456. (a) Plaintiff's Instruction 1, which purported to cover the whole case, was not erroneous, because there was sufficient proof and evidence in the record by admission of appellant's counsel that the notice required under Section 7493, Revised Statutes 1929, was duly served on the mayor within the ninety-day period. Callahan v. Kansas City, 41 S.W.2d 896; Cole v. St. L.S.F. Ry. Co., 61 S.W.2d 346, 332 Mo. 999; West v. West, 110 S.W.2d 398; Pratt v. Conway, 49 S.W. 1030, 148 Mo. 291; Everett v. Marston, 85 S.W. 540, 186 Mo. 587; Schoeder v. Stadley, 261 S.W. 935; Reutner, Klaus Co. v. Nelson Chesman Co., 9 S.W.2d 657.
Plaintiff recovered a judgment for $10,000 for personal injuries resulting from a fall caused by ice on a public sidewalk. The city is charged with negligence in permitting snow and ice to accumulate and remain on the sidewalk resulting in a dangerous condition which caused plaintiff's injuries.
On the morning of February 17, 1936, plaintiff was walking on the north sidewalk of the 3400 block of Rutger Street in St. Louis. The sidewalk was made of cinders. There was no curbing separating it from the street. With the accumulation of ice and snow the boundary of the sidewalk along the street side was indistinguishable. Ice had accumulated and remained on the sidewalk contiguous to a vacant lot for three or four weeks prior to the accident. It was rough and heavy ice. It was formed by the partial thawing in the daytime of the snow which remained there and then its freezing again at night. Being walked over probably caused its roughness. Plaintiff's right heel hit the edge of the ice, caught and threw him. During the preceding month the weather had been extremely cold with brief intermissions. The month of February had been the coldest since 1905. There was snow from time to time so that the ground remained covered. In spite of this condition, sidewalks generally throughout the city had been cleaned preventing accumulations of ice or had been made safe by being sprinkled with ashes.
The chief contention of the city is that its demurrer to the evidence should have been sustained because the condition of the sidewalk was part of a general condition of snow and ice so that the city is not liable. This is the general rule and is based on the practical reason that a city could not remove entirely all the snow and ice from all the sidewalks under such climatic conditions. [Reedy v. St. Louis Brewing Assn. et al., 161 Mo. 523, 61 S.W. 859.]
In the recent case of Barrett v. Town of Canton, 338 Mo. 1082, 93 575 S.W.2d 927, it was held in effect that a city could be held liable for a general condition of snow and ice if the city had a reasonable opportunity to correct the situation. In so holding that case departs from our ruling in the Reedy case and in Vonkey v. St. Louis, 219 Mo. 37, 117 S.W. 733. It cites in support of its holding our decision in Suttmoeller v. City of St. Louis (Mo.), 230 S.W. 67, which we do not believe apposite under the facts because the latter case involved a special condition rather than a general one. In that case the snow had entirely disappeared from the streets and sidewalks except at places here and there where it had formed into ice, and at the spot where the accident arose the ice had accumulated in high and uneven edges and had so remained long after the snow had disappeared from the sidewalks generally. The case of Reno v. City of St. Joseph, 169 Mo. 642, 70 S.W. 123, also cited in the Barrett case, likewise involved not a general condition but a local one where the snow and ice had accumulated at a particular spot.
It is the widespread general condition from natural causes which has induced the rule of non-liability on the part of a city. But where the condition complained of is an isolated one by reason of special surroundings or because of a local accumulation of snow and ice, then it is the duty of the city to exercise reasonable care to remedy such condition if it is dangerous.
We approve the rule as expressed by our late Judge FRANK when on the Kansas City Court of Appeals, as follows: "A city is not required to remove snow and ice from its sidewalks where such condition is general throughout the city. It is, however, the duty of the city to exercise reasonable care to keep its sidewalks free from dangerous conditions, which are not classed as a generally dangerous condition, produced by natural causes such as snow and ice. Where snow accumulates on the sidewalk to such an extent that it produces a dangerous condition, not common to the general condition throughout the city, it is the duty of the city to exercise reasonable care to remedy such dangerous condition." [Harding v. City of St. Joseph (Mo. App.), 7 S.W.2d 707.]
It is true on the morning plaintiff was injured there was a general condition of ice. But it is important to observe that the evidence all shows that on this morning this general condition was one of slick and slippery ice, while at the place where plaintiff fell the ice was described as rough and heavy. The unsafe condition of the sidewalk did not arise from the general condition of slippery ice but from the presence in that one spot of rough and heavy ice which had accumulated and remained there over the previous three or four weeks — a special, isolated condition. Under similar circumstances a judgment for plaintiff was upheld in Barker v. City of Jefferson, 155 Mo. App. 390, 137 S.W. 10.
In the instant case the ruling of the trial court was correct under the evidence of the dangerous condition of the sidewalk existing at the scene of the injury not common to the general condition throughout the city.
The city complains of plaintiff's main instruction on the ground it did not require the jury to find a dangerous condition had existed for a sufficient length of time to give the city notice and also because it did not tell the jury the city was entitled to a reasonable time after notice, to remedy the condition. Neither complaint is tenable. Plaintiff's instruction, in express terms, required the jury to find the ice rendered the sidewalk not reasonably safe for travel and had remained at the place of the injury long enough to give notice to the city of its existence in sufficient time for the city in the exercise of ordinary care to have removed it before the injury occurred. Neither the presence of the ice where the plaintiff fell, nor the length of time it had remained there, nor the fact that it was dangerous during all such time was disputed by the evidence.
There is no doubt that a city is entitled to sufficient notice, actual or constructive, of a dangerous condition as will give it a reasonable time to remedy such condition. [Nimmo v. Perkinson Bros. Const. Co. (Mo.), 85 S.W.2d 98.] The instruction complied with this rule. The case of Allen v. Kansas City (Mo. App.), 64 S.W.2d 765, and the other cases advanced by the city in support of its contentions are not applicable to the instruction in this case.
Another criticism lodged against the same instruction is that it singled out and commented upon a portion of the evidence so as to confuse and mislead the jury. The instruction required the jury to find that the icy condition of the sidewalk which caused plaintiff to fall "had existed at said place for a longer period of time than on the sidewalks generally throughout the city." This criticism is likewise untenable. In view of our conclusion stated above it was necessary for the jury to find as a positive fact that the condition complained of was a local, isolated one and not a general one before it could impose liability on the city. Such is the effect of the language complained of and nothing more. Besides, the city in its instructions has followed the same theory in the same language.
Determination of the issue whether proper notice of plaintiff's claim for damages was timely given to the city as required by Sec. 7493, R.S. 1929, Ann. Stat., p. 5960, turns on the extent of an admission of the city's counsel at the trial. He contends that his admission was merely of the timely service of the paper which plaintiff's counsel had the court reporter mark as an exhibit and not that he admitted the paper was a notice and a sufficient one. As we read the record and observe the conduct of counsel and of the trial judge we must conclude that the admission included notice to the city and its sufficiency as well as its service. Having made such admission the city cannot now on appeal assert that sufficient notice was not given. [Cole v. St. L.-San Fran. Ry. Co., 332 Mo. 999, 61 S.W.2d 344. See also Callahan v. Kansas City, 226 Mo. App. 408, 41 S.W.2d 894.]
Plaintiff, fifty-six years old, suffered an intra capsular fracture of the neck of the right femur, a broken hip. Union of the broken bones was obtained by the use of metal pins. He was in the hospital for ten weeks, at home in bed for seven weeks. Thereafter he was in a wheel chair and then used crutches. The right leg is permanently shortened by an inch and there is some eversion of the right foot. He will have to continue to use crutches the remainder of his life. A residual pain will be permanent. There is uncontroverted testimony of total disability. Under these circumstances, a judgment of $10,000 is not excessive.
The judgment is affirmed. All concur.