Boyd v. Logan Jones Dry Goods Co. , 340 Mo. 1100 ( 1937 )

ON MOTION FOR REHEARING. Plaintiff's motion for rehearing states as its ground that a question decisive of the case, and duly submitted, has been overlooked; namely, that evidence of previous accidents at the same place is admissible not merely to show knowledge of a defective condition but to show also that the place was dangerous. We think it advisable to clarify this matter. The opinion does not mean that such evidence is inadmissible or that it cannot be considered on that issue; but it does mean that, in this case, it would not make sufficient substantial evidence to make a jury case on that issue, and it holds that such evidence is not alone sufficient to prove negligent construction or defective condition. We hold that, even if such evidence as was offered be considered, nevertheless, all the evidence taken together viewed most favorably with respect to plaintiff's case, fails to show any defective condition or a construction that was not reasonably safe. Such evidence is only circumstantial evidence, at most, and the mere fact that evidence of certain circumstances is admissible does not mean that such evidencealone amounts to sufficient substantial evidence to make a jury case.

In the United States Supreme Court case cited by plaintiff, District of Columbia v. Armes, 107 U.S. 519, 2 Sup. Ct. 840, 27 L. Ed. 618, there were three steps in the middle of a sidewalk, which, at a distance of twelve feet, paralleled the curb, and which caused an abrupt descent of about two feet for a considerable distance in all of that part of the sidewalk more than twelve feet from the curb. That was very unusual sidewalk construction. Nothing was put there to guard or warn pedestrians and there was no mention of any light there at night, when the plaintiff in that case fell. The court said that other accidents at this place were "circumstances which, with other evidence, tended to show the dangerous character of the sidewalk in its unguarded condition;" and that "they also tended to show that the dangerous character of the locality was brought to the attention of the city authorities." It is clear that, even without evidence of previous accidents, there was substantial evidence of an unsafe condition of the sidewalk.

This case is cited by this court in Charlton v. St. Louis-San Francisco Railway Co., 200 Mo. 413, 98 S.W. 529, where the negligence alleged was erecting and maintaining a water crane too close to a railroad track. This court held that it was proper to show that the water crane previously struck a man on a car, because "it tended to show the nearness of the crane and its appendages, and, hence the incident dangers." The court also pointed out the "line of fire cases holding that the escape of fire from other engines at other times may be shown." Of course, other evidence showed that the crane was negligently located and maintained with "no legitimate necessity for maintaining" it there. There was likewise other substantial evidence to show a defective or unsafe condition in such cases cited by plaintiff as Walsh v. Southwestern Bell Tel. Co., 331 Mo. 118,52 S.W.2d 839; Manson v. May Department Stores Co. (Mo. App.),71 S.W.2d 1081; Metz v. Kansas City, 229 Mo. App. 402, 81 S.W.2d 462. The Charlton case is cited in Lake Superior Loader Co. v. Huttig Lead Zinc Co., 305 Mo. 130, 264 S.W. 396, and from the discussion therein the rules governing admissibility of such evidence may be stated to be that "there is no dispute about the general rule which ordinarily excludes evidence of independent events and occurrences which are not directly connected with the matter in dispute;" but that there is a well-established "exception to this general rule, which exception, in a proper case, lets in evidence of the `tendency, capacity or quality of a material object' by proof of its operation (or, we may add, itseffect) under conditions essentially similar;" and that "in respect of a ruling on offered evidence of this kind the trial court is vested with a discretion which will not lightly be overruled." Nevertheless, even if such evidence is admitted, whether in the particular case there is negligent construction, which makes the structure not reasonably safe for its purpose and contemplated use, is sometimes a question for the court and not for the jury. We hold that it is for the court and not for the jury, in this case where the condition was so open and obvious that it could be seen by anyone who would look, and where anyone in the exercise of ordinary care could walk over this step, landing and balcony with safety.

The motion for rehearing is overruled.