Stout v. City of Columbia

ELLISON, J. — The plaintiff fell into an areaway in and under the sidewalk in front of a newly-erected building in the city of Columbia and was injured. He brought this action for damages charging that the city was negligent in leaving the place unprotected. He prevailed in the trial court. There was evidence tending to show that the basement of the building was about eight feet deep and extended beyond the property line three feet into the side [442] walk. That this wa.s unlighted and unguarded and was insufficiently covered. There was also evidence tending to show that plaintiff was a farmer residing some distance from Columbia and that on the afternoon of the day in question he Avas in the city on business and while preparing to start home late in the d'av, a short time after dark, he attempted to pass along the walk in front of the building, but fell into the excavation. He admitted that he had taken three drinks of liquor during the course of the afternoon, and there was evidence which tended to show that he was more or less intoxicated. Earnest complaint is made of the instructions given for plaintiff. On reading them as a series connected with those give for the defense, one is left firmly impressed Avith the idea that they make up a plain, fair and complete direction to the jury. But as they have been attacked with all the force Avhich the ability and industry of counsel can bring to bear, we will examine some of them in detail. By the second instruction, the jury Avere told that plaintiff, in the absence of knowledge to the contrary, -had a right to assume that the sideAvalk was reasonably safe. It was ruled in Sargent v. Railway, 114 Mo. 348, that it Avas error, in the circumstances of that case, to instruct the jury that a passenger, Avho had alighted at night from a raiLvay train and was passing along the platform of the station, Avhen she fell over some mail sacks throAvn out of the mail car, had a right to assume the Avay was safe. A passenger just alighting from an incoming train and passing over a station platform where people are hurrying to and fro, where baggage, express matter and mail are being hurriedly loaded and unloaded, is under altogether different surroundings and conditions from the pedestrian passing along the sidewalks of the city. As said in that case, “the care of the passenger must be suited to the surroundings, for this is but ordinary care.” In that case, the obstruction Avas matter which had but a few moments before been put upon the platform, and was matter which, it might [443] be said, should be expected to be there at such a time. But it is not expected that unguarded excavations will be found in sidewalks. The conditions found in that case and this are unlike. It has been expressly ruled by the Supreme Court that an instruction stating that a pedestrian bad a right to presume the city had performed its duty to keep the walk in safe condition was proper: [Roe v. City of Kansas, 100 Mo. 190; Holloway v. Kansas City, 184 Mo. 19, 29.] And even as to a depot platform, see Fullerton v. Fordyce, 121 Mo. 10. As already stated, there was evidence tending to show that plaintiff may have been, in some degree, under the influence of liquor. On that head, the court, at his request, gave the following instruction: “The jury are instructed that although they may believe from the evidence that plaintiff at the time of the injury complained of had been drinking, or was to some extent under the influence of intoxicating liquors, yet if they further believe from the evidence that the same had not so affected his mind and power of locomotion as to prevent him from, exercising ordinary care in passing along the street and sideAvalk in question, and that he did exercise such care and would not have fallen into such excavation or pit and been injured if defendant had exercised reasonable care on its part by protecting, guarding, covering, or lighting said excavation or pit, and if the jury further find from the evidence that plaintiff fell into the excavation and received the injuries complained of in direct consequence of defendant’s negligence, if any, in not so safeguarding said excavation, and without fault or negligence on his part contributing thereto, then the fact, if you believe it to be a fact, that plaintiff had been drinking or was under the influence of intoxicating liquors, is immaterial and constitutes no defense to plaintiff’s cause of action herein.” The substance of the instruction is that even though plaintiff was under the influence of liquor, yet if it had not disabled him, mentally or physically, from exercis [444] ing ordinary care, and that he did exercise such care, and would not have fallen into the excavation if it had been guarded by covering or lighting and that he fell in without any fault or negligence on his part, then it was immaterial whether he was under the influence of intoxicating drink. If the fact of his drinking did not affect him in the sense of the exercise of care and prudence, manifestly he should not be debarred of a right to hold the city responsible for the negligent injury which was inflicted upon him. [Meyer v. Railway, 40 Mo. 151, 156.] A like instruction was upheld in Loewer v. Sedalia, 77 Mo. 431. Defendant’s objection to the instruction is apparently countenanced by Buddenberg v. Chouteau Co., 108 Mo. 394. The wording of the instructions in the two cases are different. In this case, the jury are, in terms, affirmatively required to find that plaintiff did exercise ordinary care and that he fell without fault or negligence. While in that case, the court said the instruction directed the jury not to consider intoxication unless they believed he was so drunk as to be unable to exercise ordinary care. The way in which the instructions in the two cases are worded malíes for them a different meaning. We do not consider other objections as well taken. The modification of defendant’s instructions as made by the court was not improper and certainly was not harmful. There were two points of objection to evidence which the court admitted over defendant’s protest. One was that other persons had fallen into the same place; and the other, that the city fixed or guarded the place immediately after plaintiff’s fall. The latter was withdrawn by instruction of the court. The former must be regarded as harmful error. While the rule is not uniform in this country, yet it seems to be settled in this State that such evidence involves collateral issues and should be excluded. [Goble v. Kansas City, 148 Mo. 470; Smart v. Kansas City, 91 Mo. App. 586.] The evi [445] deuce was probably admitted on the authority of Golden v. Clinton, 54 Mo. App. 100; but that case is not in accord with the foregoing later rulings. We are cited in support of the evidence to the case of Golden v. Railway, 84 Mo. App. 59. We think it does not apply. It was not a like case. There the question was whether a lot of old lumber piled by the roadside and negligently allowed to remain, would likely frighten horses, and we held it proper to show that it had frightened other horses than those driven by the plaintiff. Such evidence in that case did not involve collateral matter but bore directly on the issues there involved. For the error stated, the judgment will be reversed and the cause remanded. All concur.