Callaway v. Newman Mercantile Co.

I regret that I cannot concur in the opinion of Commissioner SEDDON, wherein he holds that the trial court was justified in sustaining a demurrer to the plaintiff's evidence. It is alleged in the petition and established by her evidence that plaintiff caught the heel of her shoe in a hole in that part of the sidewalk on property under the control of the defendant; in other words, on the thirty-three and three-fourths inches of the walk next to the building, *Page 782 the same being occupied by the defendant. This portion of the sidewalk was over ground owned by defendant's lessor and the basement underneath was at all times occupied by defendant: the steel frame with the glass prisms had been placed in the sidewalk for the benefit of defendant, defendant inspected the same every day except Sunday, and repaired the same whenever repairs were needed. This did not constitute an abandonment by the defendant, nor an acceptance thereof by the city. Hence, I am of the opinion that the question was a proper one to submit to the jury, and that the action of the trial court in taking the case from the jury constituted error. The case cited by Commissioner SEDDON of Breen v. Johnson Brothers Drug Co., 297 Mo. 176, is not an authority in support of his contention; for the plaintiff in that case sued the owner of a building for injuries received on a defective sidewalk in front of said building, which walk was entirely in the street. Very properly the Supreme Court held in that case that the city was liable for the defective sidewalk and not the owner or occupant of the building. [Breen v. Johnson Brothers Drug Co., 297 Mo. l.c. 184.]

In the instant case, the injury to plaintiff, according to her evidence, was received while she was on a part of the sidewalk over the ground occupied by the defendant, and the evidence fails to show that said piece of ground had been dedicated to the city for public use, and it also fails to show that the city ever exercised ownership or control over it. Hence, the question was one of fact for the jury.

Being of the opinion that the case should be reversed and remanded, I dissent from the majority opinion herein. Gantt,J., concurs.