Alexander v. City of St. Joseph , 170 Mo. App. 376 ( 1913 )

TRIMBLE, J. —

Respondent, a lady fifty-six years of age while walking down the west side of Eleventh street in the city of St. Joseph about 1:30 p. m., was injured by a fall caused by stumbling over a stump of a tree in the sidewalk about a foot and a half or two feet inside the curb and extending three or four inches above the surface of the walk. The sidewalk was brick and extended from the property line to the curb making the walk twelve feet in width. _ This stump was five or six inches in diameter and had been there in the sidewalk for at least five months prior to the injury.

Penn street, running east and west, crossed Eleventh street a short distance north of where • the stump was. A street car came along Penn street making a great noise and rapidly nearing the crossing at Eleventh street. At the same moment a team coming south on Eleventh street was also approaching this crossing and “cutting up like it was going to run away.” Respondent was looking where she was going, but seeing the team was frightened and likely to run away and in her direction, her attention wás momentarily attracted to it. Just then her toe struck the stump and she was thrown to the ground sustaining the injuries complained of.

The questions of the negligence of the city and of the contributory negligence of the plaintiff were properly submitted to the jury, and it decided the city was negligent and not plaintiff, and returned a verdict in her favor of $500. Thereupon defendant applied to the trial court, in a motion for new trial, to have the verdict set aside on the ground, among others, that the plaintiff can in no event recover because she was guilty of contributory negligence and because the existence of the stump in the sidewalk was not such a defect as to render the city liable in damages. Receiving an adverse ruling from the trial judge on these points, the case is brought to us.

The case will have to be affirmed. It is not contributory negligence as a matter of law for a pedestrian to trip against an obstruction even though it is in sight, unless it was so obvious as that it could not 'possibly fail to escape notice if one were using the ordinary senses. [O’Donnell v. Hannibal, 144 Mo. App. 155.] The question of plaintiff’s negligence is for the jury. [Hill v. City of St. Joseph, 143 Mo. App. 389; Coffey v. Carthage, 186 Mo. 573, l. c. 584.] In this last ease the plaintiff testified that at the time she •stepped into the hole she was looking at a man, and that she was a little scared was the reason she was looking at him and for that reason was not at the moment paying attention to where she was walking, and that if she had been she would not have stepped into the hole. The Supreme Court held that the question of her contributory negligence was for the jury. In O’Donnell v. Hannibal, 143 Mo. App. l. c. 160, it is said: “Pedestrians of all degrees of care suffer their thoughts and senses to be engaged by other things than the sidewalk in front of them, and it is not contributory negligence per se for a pedestrian to stump his toe against a protruding gas pipe, hinge, or similar obstruction, though it be in plain sight. Generally, in such cases, it is a question of fact for the jury to determine .whether or not the plaintiff was observing due care.” These two cases apply with pecn-liar force to the case at bar. The plaintiff was not stalking along gazing into vacuity and taking no thought for her safety. On the contrary, her attention was momentarily drawn to a frightened team liable to run away and run in her direction. Under such circumstances she was not required to keep her eyes glued to the sidewalk, but had a right to assume that it was reasonably safe for travel, and that it was so throughout its entire width. [Roe v. Kansas City, 100 Mo. 190.]

Permitting a stump, five or six inches in diameter' and extending three or four inches above the surface of the sidewalk, to remain there five months is sufficient to authorize the submission to the jury of the questions whether the walk is dangerous or unsafe to pedestrians, and whether the city was negligent in so doing. [Hill v. St. Joseph, 143 Mo. App. 389; O’Donnell v. Hannibal, 144 Mo. App. 155; Urtel v. City of Flint, 80 N. W. (Mich.) 991; Mullins v. Siegel-Cooper Co., 183 N. Y. 129; Wedderburn v. City of Detroit, 108 N. W. (Mich.) 102.] It is true defendant’s evidence was that the stump was not quite so large nor so tall, but in the consideration of the question before ns we must take the evidence most favorable to the plaintiff. Judgment affirmed.

All concur.