Opinion · Molaw Missouri
GLENN v. CITY OF SPRINGFIELD, 254 S.W.2d 632 (Mo. 1953)
GLENN v. CITY OF SPRINGFIELD., 254 S.W.2d 632 (Supreme Court of Missouri,Division No. 1. 1953)
- Type
- Opinion
- Court
- Molaw Missouri
- Jurisdiction
- Molaw
- Date
- 1953-02-09
- Topic
- general
GLENN v. CITY OF SPRINGFIELD, 254 S.W.2d 632 (Mo. 1953) GLENN v. CITY OF SPRINGFIELD. No. 43292.Supreme Court of Missouri,Division No. 1. February 9, 1953.
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UpLaw has not yet analyzed GLENN v. CITY OF SPRINGFIELD, 254 S.W.2d 632 (Mo. 1953). The absence of a flag is not a finding that it is good law.
GLENN v. CITY OF SPRINGFIELD,254 S.W.2d 632(Mo. 1953)
GLENN v. CITY OF SPRINGFIELD.
No. 43292.
Supreme Court of Missouri,
Division No. 1.
February 9, 1953.
Theodore Beezley, Springfield, John R. Caslavka, Greenfield, for respondent.
[2] It appears that defendant was a city of the second class and that Walnut Street and New Avenue were public streets in that city. It also appears that about 8:30 or 9:00 a. m. on February 2, 1951, plaintiff walked from his home at 1314 West Walnut eastward along the south side of Walnut and was walking across New Avenue when he was caused to fall; that at that point New Avenue was paved withPage 633concrete, that there was some snow on the ground on that morning; that as plaintiff was crossing New Avenue there were dirt and rocks and uneven ridges of the same under the snow and along and upon the crosswalk; that when plaintiff was in about the center of New Avenue he "stepped on them ridges" and his foot went in between the ridges or mounds of dirt and rock and "it throwed me so quick like that" and plaintiff "had to take my foot like that and pull it out"; that plaintiff had looked at the street or crosswalk before he started to cross it, but was not looking down as he walked across New Avenue. As a result of his fail plaintiff sustained a fractured hip and other injuries and was in traction in a hospital for some months. His injuries and disabilities were permanent. It is not here claimed that the verdict is excessive.
[3] The city's street and alley inspector testified that some months before plaintiff's fall, considerable dirt and rock had fallen off of overloaded trucks upon the crosswalk at the place plaintiff fell and that the city engineer of defendant had instructed the street inspector to do something about that condition of the street and crosswalk; that when plaintiff fell the street and crosswalk "was in a pretty bad condition and it did have a lot of rock and dirt on it" and "it (the dirt and rock) stayed pretty well all winter there until the weather broke." It also appears of record that "the condition of the street at that time was awful bad"; that red clay, rocks and other material had been "beat * * * into the crosswalk" and many complaints had been made to the defendant city about the condition of the crosswalk over New Avenue along the south side of Walnut; and that on the morning plaintiff fell on the crosswalk in question "there was a big pile of rock and dirt piled up there (where plaintiff fell) in a ridge."
[4] From defendant's Points and Authorities in its brief we must conclude that the brief was written without any reference at all to our Rule 1.08. Defendant's purported Points and Authorities are set forth in many subdivisions but hardly any of them even purport to specify an allegation of error claimed to have been committed by the trial court. The remainder are but mere abstract statements of law with no attempt whatever made to apply them to this case. In defendant's written argument in its brief its counsel suggest several vague and indefinite matters which we should ignore as defendant's counsel have ignored our Rule 1.08. From defendant's brief it is exceedingly difficult to understand what matter counsel had in mind or where in the transcript the purported and vaguely referred to matter may be found. The deficiencies of such a brief increase manyfold the labor of the preparation of an opinion. We are unable to understand why counsel ignore Rule 1.08 in the preparation of briefs. Counsel are too often only warned against such flagrant violation of our Rules. Patterson v. Wilmont, Mo.Sup.,245 S.W.2d 116, loc. cit. 118, 119. We should dismiss the appeal, but have again concluded to consider and discuss such matters as defendant has appeared to try to call to our attention.
[5] We first consider whether the trial court erred in not sustaining defendant's motion for a directed verdict upon the ground as claimed by defendant, that plaintiff was guilty of contributory negligence as a matter of law.
[6] Plaintiff was walking east along the south side of Walnut and fell as he was walking over New Avenue. There was some snow on the ground. On cross-examination by defendant's counsel, plaintiff testified:
[7] "Q. How deep was this ridge that you — A. Five or six inches deep.
[8] "q. The ridge was five or six inches deep? A. Yeah. There was a lot of them there, there wasn't only one.
[9] "Q. There were a lot of them? A. Yeah.
[10] "Q. Were there any ridges in the part of the street you had already walked over before you fell? A. I never paid no attention to that, just to tell you the truth now.
[11] "Q. What do you mean you didn't pay any attention? A. I just seen snow and stuff, that's all I seen.
[12] "Q. You weren't looking when you were walking, you were watching for cars weren't you? A. Anybody stops and looks — I don't say I wasn't looking. I don't walk with myPage 634head down on the ground like lots of people does, I always look around, anybody does that.
[13] "Q. Did you ever look down at that street before you started to walk across it?
[14] A. Yes."
[15] A person walking along a street or a sidewalk is required by the law of this State to exercise only such care as a reasonably prudent person would exercise, under similar circumstances, to discover and to avoid dangerous obstructions or defects. He is not required by the law to constantly give his exclusive and undivided attention to the street or sidewalk immediately in front of him. The circumstances must be always considered. Plaintiff testified that he looked at the street before he started to cross it but was not constantly looking down at the street as he crossed New Avenue. Under the circumstances of record here plaintiff was clearly not contributorily negligent as a matter of law. Whether he was contributorily negligent was a proper question to be determined by the jury under the court's instructions. That question was submitted to the instant jury under defendant's instructions covering that issue. Upon the instructions and the evidence the jury determined that issue in favor of plaintiff.
[16] Defendant relies upon Sloan v. American Press, 327 Mo. 470,37 S.W.2d 884and Cline v. City of St. Joseph, Mo.App.,245 S.W.2d 695. The facts of the Sloan case quickly and readily distinguish it from the instant case. In the Sloan case, the plaintiff, with his eyes on a man on the other side of the street and without having looked where he intended to walk, moved forward 12 to 25 feet and fell into an open elevator shaft in the sidewalk. This court held plaintiff there was guilty of contributory negligence as a matter of law. But there is no such situation presented by the instant facts. In Cline v. City of St. Joseph, supra, a case quite comparable to the instant case as to facts, it was held that the question of plaintiff's contributory negligence was properly one for the jury to determine. This contention is without merit and must be denied.
[17] We come next to the question of whether plaintiff's Instruction I assumed that the dirt and rock and uneven ridges on the crosswalk constituted a dangerous obstruction thereon. Among other things Instruction I required the jury to find that on and before February 2, 1951, upon said crosswalk: "there existed and had existed an accumulation of dirt and rocks, which had accumulated in uneven ridges upon the crosswalk mentioned in evidence, if so, and that by reason thereof said crosswalk at said time and place was not reasonably safe for pedestrian use by plaintiff in the exercise of ordinary care for his own safety, if so," etc.
[18] Under the above quoted portion of the instruction, before the jury could find for plaintiff the jury were compelled to find that the crosswalk wasnotreasonably safe for pedestrian use, that is, that the dirt, rock and ridges amounted in fact to a dangerous obstruction thereon. If it was "not reasonably safe for pedestrian use," and the jury were required to find that it was not, its condition was dangerous. There is no magic in the words "dangerous obstruction." This same objection was made in Walsh v. City of St. Louis, 346 Mo. 571,142 S.W.2d 465, 467. And see also Elliott v. Kansas City, 198 Mo. 593, 96 S.W. 1023, 1029, 6 L.R.A., N.S., 1082, and Roy v. Kansas City, 204 Mo.App. 332,224 S.W. 132, 139. In those cases it was ruled that a finding that a condition was dangerous was equivalent to a finding that it was not reasonably safe.
[19] It is noted that defendant's Instruction 5 instructed the jury that the city was not an insurer, and authorized a verdict for defendant if the jury found the crosswalk in question to have been, under the facts and circumstances in evidence, "in a reasonably safe condition for pedestrians to travel." Instruction 1 does not assume that the condition of the crosswalk constituted a dangerous obstruction, nor is the instruction erroneous in form in any respect indicated in the defendant's brief.
[20] In the defendant's brief we find it stated that: "The sole cause instruction given by the court * * * failed to cover the entire facts which were necessary to sustainPage 635the verdict, the evidence disclosed the presence of two causes which singly or together may have caused the injury of respondent at the crosswalk in question. However, the sole cause instruction No. 1 alleged only the negligent act of permitting uneven ridges of dirt and rocks. The negligence of the city, if any, consisted, therefore, of the permitting the presence of both dirt and rock and snow and ice on the street. Either or both causes could have been the proximate cause of the injury. There is no negation of the snow and ice as either the cause or contributing cause in plaintiff's instruction."
[21] We have carefully examined the instruction. It is not a sole cause instruction. It is plaintiff's main instruction which submitted his case to the jury and predicated a verdict for plaintiff. In any event, we find that it contains every essential element required by the pleadings and the evidence in this case to be contained therein. Instruction No. 11, given by the court to the jury at defendant's request, told the jury that if the jury found that the sole cause of plaintiff's fall was the presence of ice and snow (where plaintiff fell) and that such condition of ice and snow was common to a general condition of ice and snow throughout the city of Springfield, then the jury's verdict must be for defendant. The propriety of Instruction No. 11 is not now before us. But it was given, and at defendant's request.
[22] On page 16 of defendant's brief we read as follows: "The court erred in submitting respondent's instruction No. 1 for the reason that the instruction failed to require that appellant knew of the dangerous quality or condition of the crosswalk." But Instruction No. 1 required the jury to find as a fact that the defective condition alleged and proved had existed there for such period of time prior to February 2, 1951, that defendant knew or by and in the exercise of ordinary care could and should have known of the condition in time to have remedied or removed it, but negligently failed to do so. Defendant's suggestion is wholly without merit. And Instruction No. 1 was free from reversible error.
[23] On page 16 of defendant's brief it issuggestedthat plaintiff's counsel, Mr. Caslavka, was permitted to indulge in an improper argument to the jury. Reference is there made to page 314 of the transcript. Examination of page 314 of the record shows that defendant did not even object to the argument of plaintiff's counsel. Subsequent portions of the colloquy between the respective counsel and the court show only a general objection by defendant's counsel. But defendant made no motion to instruct the jury to disregard, no request for reprimand of plaintiff's counsel. no motion for mistrial or for the jury's discharge, and did not even complain of the incident in defendant's motion for new trial.
[24] Defendant's brief also suggests that a portion of the argument of Mr. Beezley, another counsel for plaintiff, was prejudicial. During the argument in question Mr. Beezley stated: "Now do you think that William Glenn would have had to come into this courtroom and set here two days in this hot sun and subject himself to the pain like he did if it had been some other company?" Defendant's counsel thereupon asked that the above portion of the argument be stricken and the jury instructed to disregard it, and the jury discharged. The trial court instructed the jury to disregard the statement of counsel but refused to discharge the jury. Defendant made no request for reprimand of counsel nor for any further instruction to the jury with respect to the matter. The statement was not manifestly prejudicial. Under these circumstances, where the trial court instructed the jury to disregard what had been said, we cannot rule that the court abused its discretion in refusing to discharge the jury. Warning v. Thompson, Mo. Sup.,249 S.W.2d 335, 343, Hilton v. Thompson, 360 Mo. 177, 227, S.W.2d 675, 684, Griffith v. Gardner, 358 Mo. 859,217 S.W.2d 519, 530, 531.
[25] We find that there was no prejudicial error and the judgment is affirmed.
[26] All concur.Page 638