Nos. 27995, 27996.
March 20, 1951. Rehearing Denied April 20, 1951.
APPEAL FROM THE CITY OF ST. LOUIS CIRCUIT COURT, WILLIAM B. FLYNN, J.
James E. Crowe, City Counselor, Frank A. Neun, Asst. City Counselor, St. Louis, for appellant City of St. Louis.
Leahy Leahy, Joseph L. Badaracco, St. Louis, for appellant Jays Real Estate Co.
Albright McKeown, St. Louis, for respondent.
This is a suit by a pedestrian against the City of St. Louis and a property owner, Jays Real Estate Company, a corporation, for damages for personal injuries sustained by plaintiff when he slipped into a hole in a defective wooden cellar door in the sidewalk in front of the property located at 2802 North Broadway in said city. Tried to a jury, plaintiff recovered a verdict and judgment against both defendants in the sum of $4500, from which both defendants have appealed to this court.
Each defendant assigns as error the overruling of its motion for a directed verdict at the close of the evidence; and the giving of plaintiff's main instruction as to each defendant. The real estate company further complains about the conduct of counsel in persistently attempting to elicit certain inadmissible evidence, and that the verdict is not supported by substantial evidence.
Plaintiff, a single man 58 years of age, night clerk and watchman at the Albers Hotel, 2100 North Broadway, in the City of St. Louis, Missouri, fell while on his way to Yount's Cafe, at 2804 North Broadway. The fall occurred on the sidewalk in front of 2802 North Broadway. In the fall he suffered a broken right leg.
The casualty occurred at 8:20 a. m. on the 27th day of January, 1949. According to the United States Weather Bureau report, a freezing drizzle began at 1:30 a. m. that date, and continued until 8:30 a. m., when it changed to rain. At 8:00 a. m. the temperature was 31 degrees. During the entire day there was a total of .62 inches precipitation, and between 8:00 a. m. and 9:00 a. m. a total of one-tenth of an inch of precipitation fell.
Plaintiff's witness Frank Yount testified that at 4:30 a.m. there was ice on the street; that it was sleeting and raining and freezing as fast as it came down, and that this condition continued until the time of plaintiff's injury; that the weather was "awful bad; snow, sleet and ice"; that it was "pretty slick"; the ice covered the entire area in front of the stores; the sidewalk was covered with ice, although he could not say how thick the ice may have been. Plaintiff's attorney described the day as "very bad; * * * the sidewalks at that time were heavily coated with ice."
Plaintiff testified that it was rainy and icy, and "had been all that morning"; that the rain was freezing; it was very cold; it was "getting awful bad"; that the ice was "getting thicker"; that he saw this icy condition, realized "he couldn't walk" (to the restaurant from the hotel, some seven blocks south); that the sidewalk was "all full of ice." When asked about the thickness of the ice on the sidewalk, plaintiff answered, "Well, it was so — I couldn't see, it was so rainy and icy, I couldn't see; it was pretty thick, and getting thicker all along, because it must have rained all morning," and in answer to the inquiry "Was it just a tiny fraction of an inch covering of ice or a large covering?" plaintiff answered, "No, a large covering there. You couldn't see it. It was a large covering."
Immediately south of Yount's restaurant there is an opening of three or four feet, an areaway, between the restaurant building and the "saloon building" belonging to the defendant real estate company, which is the next building south of Yount's. In front of the "saloon building" in the sidewalk, and as a part of the sidewalk, there is a wooden cellar door covering an opening in the sidewalk, oftentimes referred to in the evidence as a "platform". It was not a door, in the sense that it was fixed on hinges, but consisted of two by fours attached to two by four cross members, weighed about 50 or 60 pounds, and was "dropped" in place. It east end abutted the building line. The sidewalk in front of the several buildings mentioned in evidence on the east side of the 2800 block of North Broadway was constructed of brick.
Plaintiff took a streetcar, alighted at Broadway and St. Louis Avenue, and was making his way north on the east side of the 2800 block of Broadway at the time he sustained his injuries. He was on his way to get his breakfast. He had been taking breakfast at Yount's Cafe every morning for a year or more, and sometimes he took dinner there. When the weather permitted he walked, and after breakfast plaintiff would go to visit his 85 year old cousin at 22nd and Benton. Sometimes at night he would drop in at the tavern at 2800-2802 North Broadway for a bottle of beer.
Plaintiff knew there was a wooden cellar door in the sidewalk at 2802 North Broadway; he had seen it previously, but he did not know its condition.
As he made his way along on the icy sidewalk, he walked close to the building, where the platform was located, "because it was so slippery on this wet sidewalk." Plaintiff said he walked over the platform, close to the building, so that he could catch himself against the building; that it was "sleety" and he couldn't walk over the sidewalk bricks. Plaintiff was wearing eyeglasses; he "couldn't see so well because, you know, it was getting rainy and the storm right in front of me." He had his "head down, so it wouldn't come up, it was coming up toward me when I was going to the restaurant." He testified that he did not see the particular cellar door before he walked over it. He was looking down; he couldn't see; it was icy and snowy. In answer to the question, "Did you see that hole before you fell?" plaintiff answered, "No, I couldn't no sir." He gave as his reason, "Well, it was rainy and icy that morning." He "didn't recognize that hole there"; he "couldn't notice that hole because it was covered with ice and rain."
His description of the manner in which he fell was as follows: "I went over there and my heel went right in that — my right foot went in that hole and I slipped and I fell, and then it (his ankle) broke — * * I walked * * * over that platform, then when my foot — the heel, went right in that hole, then I turned over and I fell and it broke * * * (my foot went in) all the way up to the ankle. * * * Yes, when I turned that way my foot came out sideways, yes. My right ankle came up, yes. * * * The right ankle, that right foot there, that heel caught in there and — my foot, I mean, and the heel caught in there and turned over, and it broke and I fell on the ground on this side. I couldn't hold on account of that one arm, I had to fall down that side, and when I did that foot turned over and I heard that crack. It broke and I landed."
At another point in the testimony plaintiff was asked, "Did your foot go down into something at that point?" to which plaintiff responded, "It went in there with the heel and forced it, that right ankle, and when I fell down it turned over, then after it turned over it slipped out."
And again, "The heel went in the hole, yes, it went in there when I went over it and I couldn't see until the heel went in it; it was icy and I couldn't see it."
Plaintiff, asked whether he had occasion after he fell to look and see what caused his fall, answered "Yes, I saw it was that very place there in that corner of that platform there." Plaintiff testified, "I know I looked and I fell right in that hole there, I fell on that cellar-door-hole, I know that. I looked and saw that and I laid right there until someone come to pick me up."
When asked what he saw at the place where the hole was, plaintiff testified "I saw it when I fell down, see? I saw that hole right there then, see? I know my heel was in that hole."
On more particular inquiry concerning the hole, he testified that "there was ice covered over it; it was an icy sheet over it; * * * I didn't see no footprint (at that particular spot); * * * (it was) glassy; it was keeping on raining and getting slicker all the time. * * * You couldn't see no footprints that day because it was solid with ice. * * *"
Concerning the thickness of the ice near the hole, plaintiff testified that the ice was "* * * getting around an inch thick. It was getting heavier all the time. * * (It) completely covered the cellar door, yes, sir, it was really covered there and I couldn't see that hole there that morning until I had my heel, then I noticed it."
Plaintiff was asked if he broke through the ice. His answer: "It was getting so heavy — I didn't break it; I just only broke my foot, and then I laid there and the ice was getting heavier all along." He further testified that the ice was "pretty heavy there * * * it was so solid I didn't leave footprints, yes, that's night. It was so solid, I know that."
Counsel for the city asked plaintiff "And it was a solid, firm sheet?" to which plaintiff replied, "A sheet; yes, sir." Pursuing the matter further, counsel asked: "And was it solid, not only the sidewalk, the bricks, but also over the portion of the sidewalk that had the cellar door?" to which plaintiff replied, "Oh, yes, yes, the cellar door and sidewalk, yes." Counsel: "Now, if it was such a solid coating of ice, how do you account for there being a hole at this particular spot?" Plaintiff: "Well, I couldn't see, that was all covered with ice there, and then it was enough for me to get my heel in there, it wasn't that hard enough, you know, for me to get my heel in there, and I turned over, my foot turned over, and then I rolled, and that is when I lay there, * * *."
At another point in the testimony plaintiff testified that the hole was "about four inches wide on each side" and again "* * * four inches by four inches, in other words, yes."
When asked on cross-examination if he had not fallen because of a depression in the sidewalk bricks, he denied it, and insisted the cause was "that wooden cellar door; the corner of that platform; in front of that saloon; this hole right here."
Mrs. Frank Yount testified that the hole was four, five or six inches in width; and she corroborated the fact that the sidewalks were generally covered with ice, and that it was snowing, sleeting and freezing.
Plaintiff's witness Frank Yount stated that he thought the cellar door was covered with ice; he "imagined" the door was completely covered with ice — that "everything else was around there," although he could not recall seeing the cellar door through the ice that day. He testified that one could get a glimpse of the bricks, the shadows of the bricks, through the ice. Yount did not know where plaintiff fell, and did not look at the sidewalk or cellar door immediately after plaintiff was brought into his restaurant. Plaintiff told Yount in the restaurant on that morning while waiting for the police to arrive that he "slipped and fell."
Defendant City of St Louis' evidence: Ivon W. Cox, a pedestrian, when he and plaintiff were 70 feet apart, saw plaintiff fall down between the door of Yount's restaurant and the space between the Yount building and defendant's building. Cox picked him up from the brick part of the sidewalk and carried him into Yount's restaurant with the aid of an unknown passerby. Cox did not know whether plaintiff fell on the sidewalk or on the cellar door, said it could have been either, and testified that the bricks under the heavy ice were not visible — that you could see a "shadow-like under there."
Joe A. Hall, the operator of the tavern at 2800 North Broadway, testified that in the middle of February, 1950, after plaintiff had been released from the hospital, he met the plaintiff on the sidewalk near by, fell into conversation with him, and plaintiff told him that "he had fell in a hole there on the sidewalk," and pointed out a hole which was west of and away from the wooden cellar door and at a place where a rock (brick) was "out"; and that plaintiff said nothing about the cellar door.
Two police officers who were called after the casualty occurred testified for the defendant. Officer Lawrence Benny testified that plaintiff told him that when he "was just a few feet from the door of the lunchroom, he slipped and fell on the ice"; that he was "almost there" (almost to the restaurant). He examined the sidewalk. It was covered with ice but he did not have occasion to examine the cellar door because he concluded from what plaintiff told him that plaintiff had fallen closer to the cafe than at the cellar door; that he assumed it was a spot north of the cellar door on a wooden platform immediately in front of the areaway between the two buildings; that the ice was heavier there than anywhere else on the sidewalk, was very rough and particularly slippery; that plaintiff said nothing about falling on a cellar door and that he saw no breaks or holes in the ice where a foot might have gone through, no footprints, nor any place where anyone may have fallen; that it was a glazed surface; that you could see bricks underneath the ice which was very heavy; that you couldn't see the platform in front of the areaway through the ice because the ice was an inch thick.
Officer Arthur Havey testified that plaintiff said he slipped and fell "just a few feet south of here", meaning the entrance to the restaurant; that he "fell on the sidewalk"; that he did not inspect the cellar door "too good"; that it was covered with ice; that he saw no holes in the ice, where a heel or toe had gone through.
Defendants claim that the trial court erred in not directing a verdict for them for the reason that the proof was "conclusive" that plaintiff slipped and fell solely because of an ice-covered sidewalk, the result of recent generally prevalent weather conditions for which they are not liable, citing Luettecke v. City of St. Louis, 346 Mo. 168, 175, 140 S.W.2d 45, 48; Stith v. J. J. Newberry Co., 336 Mo. 467, 481, 79 S.W.2d 447, 453.
The argument is that when plaintiff testified that the sidewalk was covered by an inch-thick solid glassy smooth sheet of ice; that the hole was "covered with ice and rain"; that there "was ice covered over it; it was an icy sheet over it"; that ice "completely covered the cellar door"; that you could not see footprints on the solid ice; that he did not break the ice with his heel; and that he slipped and fell, he thereby "testified himself out of court." They contend that it was inconceivable for his foot to have gone into a four-inch square hole in the first place, and impossible in the light of plaintiff's testimony that the hole was covered with a thick icy covering which never was broken. Both defendants rely on the rule that where evidence is contrary to physical facts and laws and common observation it is not acceptable as substantial evidence, courts will refuse to credit it, and it cannot be made the supporting basis of a verdict and judgment.
They say that plaintiff testified that he "slipped and fell". We have carefully reviewed the testimony of the plaintiff and we find two instances in sixty pages of his testimony wherein he stated that he "slipped". He said, "Well, the sidewalk, it was all full of ice, and I went over there and my feet went right in that — my right foot went in that hole and I slipped and I fell, and then it broke —," and when he was asked "Was the ice pretty solid and firm?" he answered, "It was pretty heavy there. I couldn't see it there and that is why I slipped right in there."
If in fact there was an inch-thick solid, firm sheet or coating of ice covering the hole in the wooden cellar door both before and after the casualty and if after plaintiff fell it remained intact and unbroken, it is obvious that plaintiff's foot did not go through the ice plate and into the hole. If plaintiff's sworn statements unequivocally and positively drive all reasonable minds to the inescapable conclusion that plaintiff in his testimony affirmed the existence of such a barrier, then it is our duty to declare that plaintiff has made solemn judicial admissions against interest fatal to his case, binding upon him, upon which his adversaries may rely with confidence, and standing unexplained are so violently opposed to physics, natural law and common observation that they are, as a matter of law, incredible, must be rejected by all courts, completely destroy plaintiff's case and so effectively nullify his claim that his heel and ankle went into the hole, that the latter testimony cannot be regarded as substantial evidence necessary to support the verdict and judgment.
In support of its contentions the defendant real estate company cites the following cases: Davidson v. Missouri Orpheum Corporation, 236 Mo.App. 1025, 161 S.W.2d 707, 709, 710; State ex rel. Kansas City So. R. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915, 919; Zehnder v. Stark, 248 Mo. 39, 154 S.W. 92, 96; Davidson v. St. Louis S. F. R. Co., 164 Mo.App. 701, 148 S.W. 406, 409; Sexton v. Metropolitan St. R. Co., 245 Mo. 254, 149 S.W. 21, 25; Dunn v. Alton R. Co., 340 Mo. 1037, 104 S.W.2d 311, 314; Greer v. McCrory, Mo.App., 192 S.W.2d 431, 443; Missouri Digest, Appeal and Error, 1003; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739, 752; Ducoulombier v. Thompson, 343 Mo. 991, 124 S.W.2d 1105, 1110; and Weaver v. Mobile O. R. Co., 343 Mo. 223, 120 S.W.2d 1105.
A careful examination of these cases reveals no comparable factual situation or statement of legal principle necessitating a reversal of the judgment.
The standard for our guidance in this connection is the rule stated in Schupback v. Meshevsky, Mo.Sup., 300 S.W. 465, 467, "that the testimony of a witness may be rejected upon the legal conclusion that such testimony is opposed to physical law only when such legal conclusion is so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other conclusion." The Supreme Court has also held that if reasonable minds can fairly and honestly differ concerning the possibility of an occurrence, then the question is one for the jury. Stoutimore v. Atchison, T. S. F. Ry. Co., 338 Mo. 463, 92 S.W.2d 658, 664; Doyle v. St. Louis Merchants' Bridge Terminal Ry. Co., 326 Mo. 425, 31 S.W.2d 1010.
Taking the evidence of the plaintiff as a whole, we do not believe that his showing is so manifestly violative of fundamental physical laws as to warrant our interference. While it is true that in the course of a rather long and extended cross-examination plaintiff made statements which at first blush seem incredible, nevertheless, we think that plaintiff's lack of understanding and the difficulty he had in utilizing the English language must serve to ameliorate his position.
Plaintiff was illiterate, unaccustomed to legalistic phrasing and the niceties of verbiage and unappreciative of fine distinctions between words. The seemingly inconsistent testimony given by the plaintiff in certain phases of this case may have been more the confusion of terms and misunderstanding of what was called for than the relating of a set of facts violative of physical laws. When he said that there was "ice over that hole" it is possible that he meant the coal hole. When he said he couldn't notice the hole "because it was covered with ice and rain" it is possible that he meant his vision was impaired by falling ice and rain. When he stated that the ice "completely covered the cellar door" it is quite possible, in view of his mental equipment, that he meant that all of the cellar door except the hole was completely covered with ice. When he stated that he did not break the ice it is possible that he meant that he did not crack the ice in his fall.
Plaintiff's testimony itself contains some explanation of the seeming discrepancy, in his customarily awkward and indefinite manner of speech, wherein he indicated that the coating of ice was not hard enough to keep his heel from going into the hole in this exchange: "Q. Now, if it was such a solid coating of ice how do you account for there being a hole at this particular spot? A. Well, I couldn't see, that was all covered with ice there, and then it was enough for me to get my heel in there, it wasn't that hard enough, you know, for me to get my heel in there, and I turned over, my foot turned over. * * *"
Plaintiff's showing was not self-destructive. Even if the apparent inconsistencies in his testimony be taken as true they would not result in a negation of his theory of the case, namely, that his heel went into a hole. Accepting defendants' interpretation of the challenged evidence, it establishes at most that there was a sheet of ice covering the hole. Plaintiff never did state the thickness of the ice at that point. When he was pressed on the matter on cross-examination, the question was asked, "Was it a solid sheet of ice over this hole?" His answer: "Well, it was an icy sheet over it." He would not say that it was a solid, firm plating of ice over the hole as counsel for appellants would have us believe. The jury may have inferred that there was a sheet of ice over the hole sufficient to shield it from the view of the plaintiff, which would account for his testimony that he did not see the hole before he stepped into it, but they may have also believed that it was not sufficiently thick to prevent his heel from going into the hole.
In order for contradictions and inconsistencies in a party's testimony to preclude his recovery as a matter of law they must be diametrically opposed to one another with respect to some vital question in the case, Forsythe v. Railway Express Agency, Mo.App., 125 S.W.2d 539, 541; so contradictory and without explanation as to preclude reliance thereon, Walsh v. Terminal R. Ass'n of St. Louis, 353 Mo. 458, 182 S.W.2d 607; so self-contradictory that they rob the testimony of all probative force, Schonlau v. Terminal R. Ass'n of St. Louis, 357 Mo. 1108, 212 S.W.2d 420, loc.cit. 423; and so glaring as to conclusively show that the party testified untruthfully one way or the other, O'Bauer v. Katz Drug Co., Mo.App., 49 S.W.2d 1065, loc.cit. 1073.
Otherwise, the inconsistencies in plaintiff's testimony are for the jury to resolve. Bobbitt v. United Rys. Co. of St. Louis, 169 Mo.App. 424, 153 S.W. 70; Keith v. Kansas City Rys. Co., Mo.App., 231 S.W. 1046; Moore v. Dawson, 220 Mo.App. 791, 277 S.W. 58; Lutgen v. Standard Oil Co., 221 Mo.App. 773, 287 S.W. 885, loc.cit. 887; Walsh v. Terminal R. Ass'n of St. Louis, supra; Pounds v. Farmers' Union Mercantile Co., Mo.App., 190 S.W. 374, loc.cit. 376; O'Bauer v. Katz Drug Co., supra.
On the main essentials of his case plaintiff testified consistently and persistently to the central fact that his heel went into a hole and that thereby he was caused to fall. There was no uncertainty or variance in this connection and he could not be shaken or caused to retreat or retract from that account of his injuries. He testified at least twelve times in the course of his three appearances on the stand that his heel went into the hole. The medical evidence corroborated the twisting of his foot or ankle in the hole wherein Dr. Harry L. Thieme testified that the type of fracture plaintiff had is done by a fall or a sudden turn or twist of the foot and ankle and that such an injury would be caused by a man stepping into a hole and turning his ankle.
In the instances in which the plaintiff gave seemingly inconsistent evidence we rule that its only effect was its bearing on the weight and value to be given to plaintiff's testimony (matters within the peculiar province of the jury and not of the appellate court), and we are not prepared to say that the evidence was self-destructive so as to violate the rules of physics and common observation and so contrary to natural laws as to require its rejection nor do these excerpts from plaintiff's testimony rise to the mark of unequivocal admissions against interest authorizing or requiring us to declare that they destroyed plaintiff's entire case. We believe that a jury could have harmonized the apparent inconsistencies with the balance of the plaintiff's evidence in view of the peculiar personality and make-up of the plaintiff as a witness.
The defendant real estate company urges that reversible error was committed by plaintiff's attorney in persistently and repeatedly questioning witnesses concerning the fact that the sidewalk was rough, that bricks were missing, that there were ridges and holes in the sidewalk and that it was in a bad shape. The record shows that each of these objections was sustained by the trial judge, with one exception. In each instance counsel took no further action after the objection was sustained. There was no motion to strike out the questions or answers, or to disregard them, no request for a reprimand of plaintiff's counsel, no motion for the declaration of a mistrial, and no withdrawal instructions were offered or requested.
The burden is on the party claiming the error to snow that such party has been prejudiced by the action of counsel in persisting in a line of inquiry which is inadmissible, and the trial court is presumed to have discharged its duty until the contrary is made to appear. In view of the fact that the trial court complied with every request that was made, i.e., sustained every objection save one, there can be no error for us now to review. Marts v. Powell, 176 Mo.App. 124, 161 S.W. 871. The rulings were in favor of the complaining party. Even though the rulings had been adverse to the complaining party, the error would not have been preserved unless there had been a motion to strike. Harrison v. St. Louis San Francisco Ry. Co., 339 Mo. 821, 99 S.W.2d 841; Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721.
There was no error in overruling the one objection. Counsel for the plaintiff asked witness Lizzie Yount what certain ridges appearing in a photograph of the sidewalk indicated to her. Counsel at the time explained to the trial court that the question bore on the testimony of the plaintiff that he was walking on a slanting sidewalk, as a result of which he was forced to walk closer to the building for safety, and he properly was allowed to interrogate on this matter.
Therefore, since the points relied on were neither preserved nor prejudicial we find no reversible error in the action of plaintiff's counsel in questioning about the general condition of the sidewalk.
Defendants earnestly contend that plaintiff's main instructions Nos. 1 and 2, which purport to cover the entire case and direct verdicts as to each defendant, erroneously omit any reference to the hazardous condition of the sidewalk and cellar door due to the coating of ice; that the existence of the hole in the wooden cellar door was undisputed, and the instructions, ignoring as they did the evidence and theory of defendants that the plaintiff slipped and fell solely as a result of the ice, amounted to the direction of a verdict for the plaintiff.
Defendants cite cases in support of this argument, Willhite v. City of St. Louis, 359 Mo. 933, 224 S.W.2d 956; Alexander v. Hoenshell, Mo.App., 66 S.W.2d 164; Lanio v. Kansas City Public Service Co., Mo.Sup., 162 S.W.2d 862; Wininger v. Bennett, Mo. App., 104 S.W.2d 413, each of which readily can be distinguished from the case at bar either on the law or on the facts.
The true rule in the set of facts presented in the case at bar is this: where plaintiff's main instruction purports to cover the entire case and directs a verdict in his favor but omits any reference to the defendant's theory of the case (defensive "features", matters purely of defense) it is error, which is harmless where the defendant's theory is raised by the pleadings, supported by the evidence, and fully submitted to the jury by an appropriate instruction offered by the defendant. Turner v. Southwest Missouri R. Co., 138 Mo.App. 143, 120 S.W. 128; State ex rel. Jenkins v. Trimble, 291 Mo. 227, 236 S.W. 651; Tuttle v. Chostner, Mo.App., 260 S.W. 819; Mitchell v. Wabash Ry. Co., 334 Mo. 926, 69 S.W.2d 286, loc.cit. 290; Evans v. Atchison, T. S.F. Ry. Co., 345 Mo. 147, 131 S.W.2d 604; Griffith v. Delico Meats Products Co., 347 Mo. 28, 145 S.W.2d 431; Cunningham v. Union Electric Co. of Missouri, Mo.App., 221 S.W.2d 758, loc.cit. 763, 764.
The theory of the plaintiff was that there was a hole in a wooden cellar door which was dangerous and that he slipped into the hole, fell and was injured. The defendants each plead contributory negligence and the defendant City of St. Louis, in addition, plead that his injuries were sustained as the result of generally prevalent weather conditions. There was substantial evidence offered on all of the defenses raised, and although plaintiff's main instructions Nos. 1 and 2 did not take into account the defense that the injuries were sustained by reason of the generally prevalent weather conditions, the jury was not deprived of an opportunity to consider this defense for the reason that, at the instance and request of the defendant City of St. Louis, Instruction V was given as follows: "The Court instructs the jury that if you find and believe from the evidence that the condition of the sidewalk where and when the alleged injury to plaintiff occurred was the result simply and solely of a condition of freezing rain and ice, which was general and prevalent throughout the whole city, and that there was nothing peculiar at said place and time different from the conditions generally throughout the City, then your verdict must be for the defendant, The City of St. Louis, and the defendant Jays Real Estate Company."
Plaintiff's instructions are correct as far as they go; defendants' Instruction V does not conflict, but is consistent therewith, complementary thereto, and when read together the whole question was fairly submitted to the jury.
It was not necessary for the plaintiff in his instructions to negate the connection between the ice and the fall, as a "vital fact necessary to be found before a recovery could be had," within the intendment of State ex rel. City of Jefferson v. Shain, 344 Mo. 57, 62, 63, 124 S.W.2d 1194, 1196, cited by defendant city.
Defendant insists, in effect, that it was necessary that plaintiff's instructions make an express finding that "despite the presence of the ice" the cause of the injury was the defect in the cellar door. But there is not inherent in this omission a failure to find that the proximate cause of plaintiff's injury was the defect for which defendant was liable. Both plaintiff's instructions Nos. 1 and 2 require a finding that the negligence relied on was the proximate cause of plaintiff's injuries. It was not required that plaintiff's evidence "exclude the possibility of accident or of a cause for which defendant is not liable, but it is sufficient to make a submissible case if there is substantial evidence that the injury resulted from a cause for which defendant is liable." Cech v. Mallinckrodt Chemical Co., 323 Mo. 601, 20 S.W.2d 509, loc.cit. 515. The same is true of plaintiff's instructions, i.e., they need not exclude the possibility that plaintiff fell because of generally prevalent weather conditions but it is sufficient if they require a finding that the injury resulted from the defect in the cellar door.
Finally, defendant city calls our attention to the rule that where an injury may have resulted from one of two causes, for one of which, and not the other, defendant is liable, plaintiff must show with reasonable certainty that the one for which the defendant is liable produced the result, and where the evidence leaves the matter to speculation or conjecture as to which produced the casualty, plaintiff fails in his action. Luettecke v. City of St. Louis, supra; Hayes v. S. S. Kresge Co., Mo.App., 100 S.W.2d 325.
While these decisions announce undoubted law, the facts and the manner in which the plaintiff testified in the Luettecke and Hayes cases are so materially different from the case at bar that they are not persuasive.
In the Luettecke case the plaintiff's evidence with respect to the cause of her fall was wholly conjectural. It did not show that the rough ice or the obstruction relied on caused or contributed to cause her fall. Plaintiff did not show that her fall was not caused by slipping on the smooth ice. Plaintiff herself did not know what cause her fall.
Likewise in the Hayes case plaintiff, counting on slipping and falling on stairs, first testified that she slipped and fell, then testified that she caught her foot and fell, and finally that she did not know whether she slipped and fell or caught her foot and tripped. The whole matter of the cause was left to speculation.
In the case at bar plaintiff never testified that his fall was caused by anything other than his heel going into a hole and as we have heretofore pointed out, he adhered to that theory of his case throughout his testimony. This took the cause of the injury out of the realm of conjecture and speculation and made it a question for the jury.
Finding no error, the judgment of the trial court should be affirmed, and the Commissioner so recommends.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The judgment of the trial court is, accordingly, affirmed.
ANDERSON, P. J., and McCULLEN and BENNICK, JJ., concur.