This is an action for personal injuries against the city of St. Louis and the owners and lessee of the property adjacent to that part of the sidewalk where plaintiff alleged she had fallen into a coal hole and was injured.
The petition charged the defendants with the maintenance of a nuisance and with negligently and carelessly failing to provide a railing or guard around the coal hole when open. The answer of the defendant owners was a general denial, and the answers of the city of St. Louis and Serena Alexander, the lessee, were general denials, with a charge of contributory negligence. The case was tried as if the reply was a general denial. At the close of plaintiff's case, a verdict was directed for the owners of the property. On submission of the case to the jury, a verdict of three thousand dollars was returned against the other defendants. Defendants filed motions for a new trial and in arrest of judgment. The court made an order requiring the plaintiff to enter a remittitur of fifty dollars within ten days; otherwise, the motions would be sustained. Plaintiff entered saidremittitur, and the judgment for three thousand dollars was set aside and judgment for $2950 entered on the verdict. Defendants appealed.
At the time of respondent's injury, on the 17th of October, 1919, a saloon and restaurant was conducted on the first floor of the building at the southwest corner of Grand Avenue and Enright Street in the city of St. Louis. The building faces Grand Avenue, with the saloon in the front room and the restaurant in the rear room, with a side entrance opening onto Enright Street, about forty feet west from the west building line of Grand Avenue. Three feet east of the entrance is a coal hole in the sidewalk, about four feet square, located against the building and covered with an iron door, swung on hinges, next to the building. The coal hole was a perpendicular opening under the sidewalk, with a ladder which permitted an entrance to the basement. At the time of respondent's injury and for about three weeks before, appellant Serena Alexander was the lessee of another part of the building, including the basement under the saloon and *Page 1016 restaurant, and was conducting a hotel. It was her duty as lessee to furnish heat for the whole building, and she had sole control of the basement. The respondent and her escort, John W. Gibson, on the 17th of October, 1919, went from Grand Avenue west on the south side of Enright Street, and entered the restaurant at the side entrance at about 9:30 o'clock P.M. They left the restaurant about eleven o'clock P.M. by the side entrance, and on reaching the sidewalk turned east toward Grand Avenue, when respondent, after taking about three steps, fell through the coal hole about twelve feet and into the basement. Other facts will be noted.
I. Appellant Alexander contends that her demurrer to the evidence should have been sustained, for the reason that no negligence was either pleaded or proved. The petition, in addition to charging both defendants with theLiability of maintenance of a nuisance, further charged:Lessee.
"That the defendants negligently and carelessly failed to provide any railing or guard around said coal hole, when open as aforesaid.
"Plaintiff further states that on the 17th day of October, 1919, while said coal hole was open and unguarded, as aforesaid, . . . as defendants knew, or by the exercise of ordinary case could have known, . . . and was dangerous and unsafe for the public and for persons passing along and using the same, plaintiff, at about eleven o'clock P.M., while leaving said entrance to said premises, and while lawfully and properly passing along and over said sidewalk, stepped into the opening or excavation thus left by said open door, and was thereby caused to fall with great force and violence to the bottom of said excavation. . . ."
Appellant Alexander admitted conducting a hotel in the building on the 17th of October, 1919, and testified as follows:
"The furnace room there was under my charge, that was part of my premises. I furnished heat there for the entire building. I would say at the time I went there they did not furnish me with any screen or covering of any kind. While I was there I did not, at any time, make any inspection of that basement entrance to see whether it was dangerous or safe or anything of that kind, because I had nothing to do with the outside of the building; my lease only called for inside repairs. My lease includes this furnace room; I had the use of that. The only entrance I had to that was down on Enright Avenue. At no time while I was there occupying the premises did I purchase or furnish a screen there for my employees to cover this hole with."
The janitor in the employment of appellant Alexander testified that a few minutes before respondent fell, he went into the basement through the hole and closed the lid down after him, and that respondent fell as he was lifting the lid while in the act of coming out of the *Page 1017 basement; that the lid when lifted would not stay up unless held by a box or some other object; that it would not lean against the wall of the building. There was evidence tending to show the lid would stand open and against the wall; that when respondent came from the building onto the sidewalk and had taken three steps toward the cast, she fell through the hole and into the basement; that she was not struck by the lid as she fell, and that her escort, Gibson, without having to raise the lid, immediately jumped into the basement through the hole to rescue her, and found the janitor standing in the corner of the basement.
The charge that appellant Alexander negligently left the hole open and unguarded on the 17th of October, 1919, was clearly set forth in the petition, supported by her admission and the testimony of other witnesses, and submitted to the jury by respondent's instruction numbered 1 and appellant Alexander's instruction numbered 9. Respondent's Instruction 1 correctly declares the law, is within the pleadings and the proof, and supported by substantial evidence. This contention is overruled.
II. Appellant Alexander next contends the court was in error in refusing to permit the witness Mays to answer the question: "On that specific night, do you recall what theTestimony: condition of the sidewalk there was surrounding theRepetition. coal hole with reference to being lighted? Was it such as you have described here?" The court had permitted the witness to locate the lights in the vicinity and in the saloon and restaurant. In addition, he testified as follows:
"At night, the condition surrounding the coal hole and up and down Enright Avenue there on the south side of it with reference to it being lighted or sufficiently light to enable a person to see an object or to discern the sidewalk where this coal hole was, there was plenty of light. I have always had light; two lights were burning on the corner, one opposite the saloon, and one street light; another was a gas light at the saloon; got plenty of light."
It will be noted that an answer to the question would have been a repetition of the testimony already given. It follows the refusal to permit the witness to answer the question was not prejudicial; and this contention is overruled.
III. Appellant Alexander assigns as error the action of the court in permitting counsel for respondent to argue that a verdict for defendants would be branding respondent as being so intoxicated she could not see the sidewalk. RespondentArgument was charged with contributory negligence, and witnessto Jury. Mays testified he saw respondent stagger out of the door to the edge of the sidewalk, stagger back toward the door as if she were going back *Page 1018 into the restaurant and then stagger to the coal hole and fall on him. This evidence tended to show contributory negligence. Respondent denied that she was drunk or had been drinking. We think the argument was proper on the issue of contributory negligence; and overrule this contention.
IV. Defendant city contends that the court should have sustained its demurrer, for the reason there was no testimony that the coal hole in question was habitually left open and unguarded. There was no evidence that the city hadNotice actual notice that the hole was being left open, butto City. there was evidence tending to show that for at least two years before respondent's injury the coal hole had been used as the only means of entrance to and exit from the basement. The janitor would daily go into the basement to fire the furnace and heat water for the hotel. The frequency of his trips to the basement would be determined by the condition of the weather and the amount of hot water used in the hotel. The entrance was also used to remove ashes from the basement. In addition, there was testimony tending to show that this lid would at times be left open to permit smoke from the furnace to escape from the basement; that the janitor would go into the basement on an average of four or five times a day and sometimes as often as twenty times a day. Four witnesses for the respondent, who frequented this corner, testified to having seen the lid in question open and leaning against the wall of the building. There was evidence tending to show that in 1912 and until 1915 the coal hole when open was guarded by a screen. After that time, the evidence shows, the coal hole when open was in no way guarded. We think there was no error in submitting this issue to the jury.
Defendant city directs our attention to the case of Fehlhauer v. City of St. Louis, 178 Mo. 635. In that case there was no evidence that the door of the entrance to the basement had been habitually left open.
V. Appellants contend that the respondent was guilty of contributory negligence as a matter of law. The evidence tends to show that respondent did not reside in this sectionContributory of the city, was not familiar with the sidewalkNegligence. where she was injured, and that this was her first visit to the restaurant. Several gas lights are on connecting streets, an electric sign on Grand Avenue, and some light across the street — all some distance from the coal hole. While the restaurant was lighted, the windows adjacent to the street were painted to about the height of a person's head, and the windows in the saloon adjacent to Enright Street had the curtains drawn in the nighttime. She came from a *Page 1019 well lighted room onto a street which, the evidence tends to show, was not very well lighted, and she testified that it was dark; that she did not look to determine the condition of the walk, and that she turned east toward Grand Avenue, and when she had taken only three steps fell into the hole. We think the issue of contributory negligence was for the jury. [Hanke v. City of St. Louis, 272 S.W. l.c. 937; Bentley v. Hat Co.,144 Mo. App. 612, 129 S.W. 249; Coffey v. City of Carthage, 186 Mo. 573, 85 S.W. 532; Heather v. City of Palmyra, 245 S.W. 390.]
VI. The city assigns as error the giving of the following instruction for respondent:
"You are instructed that if you find and believe from the evidence that on or about the 17th day of October, 1919, plaintiff was a pedestrian upon the south sidewalk of Enright Avenue, an open public highway of the city of St.Negligence Louis, and that upon said sidewalk there was anas Matter entrance to the basement or coal hole, equipped withof Law. an iron lid, which opened back against the wall of the building, and when open, there was no guard to reasonably prevent a person from stepping into said hole; and if you further believe from the evidence that on the occasion aforesaid, said lid was open, and that plaintiff stepped and fell into said coal hole and was injured, and if you further believe from the evidence that the coal hole was open habitually and frequently prior to the date aforesaid, and unguarded, if you so find, and that when open was dangerous and unsafe for pedestrians using said sidewalk; and if you further find and believe from the evidence that said coal hole was frequently and habitually left open, if you find it was frequently and habitually left open for a sufficient length of time prior to said October 17, 1919, that the defendant, the city of St. Louis, by the exercise of reasonable care, could have known of the defect, if you so find, and of its dangerous and unsafe condition, if you so find it was dangerous and unsafe, to have remedied said condition, and if you further believe from the evidence that as the direct result thereof plaintiff sustained her injuries, if any, and that plaintiff was at the time in the exercise of ordinary care for her own safety, then your verdict must be for the plaintiff and against the defendant, the city of St. Louis."
(1) It is contended the instruction is erroneous for the reason it assumes as regards the city that the failure to guard is negligence. There are facts which can be declared to show negligence as a matter of law, and we think the facts in this case so show. (a) The jury were required to find a continuous condition which imposed notice on the part of the city. (b) The size and situation of the trap door are such as to make its continuous use without a guard of some kind *Page 1020 negligence as a matter of law. (c) The failure of the city to have it guarded is negligence as a matter of law. If the facts required to be found were admitted, the court would have to say that the city was negligent. When the court tells the jury that if they find certain facts "then your verdict must be for the plaintiff," it is equivalent to saying that "if you find these facts such facts are negligence as a matter of law, and your verdict must be for the plaintiff." If the court could say these facts being admitted the defendant was negligent, then we can see no difference between that and the court saying that if the jury finds these facts it is declared as a matter of law the defendant was negligent. Courts continuously hold, after the facts are detailed, that plaintiffs are guilty of negligence as a matter of law. Why not the same right to say that a given state of facts shows negligence as a matter of law? [Fullerton v. Fordyee,144 Mo. 519.] The contention is overruled.
(2) It is next contended that the use of the word "dangerous" in said instruction had a tendency to mislead the jury regarding the liability of the city. A like criticism was made of a similar instruction in Hebenheimer v. St. Louis, 269 Mo. l.c. 101. We there ruled as follows: "If the jury found the coal hole and, therefore, the sidewalk to be in `an unsafe, insecure and dangerous' condition, this was equivalent to finding that it was not reasonably safe." We adhere to this ruling, and the contention is overruled.
VII. The city contends that this action cannot be maintained for the reason that no notice was given the mayor in writing, within ninety days of the injury for which respondentNotice to claims damages, stating the place where, the time whenMayor. such injury was received, the character and circumstances of the injury, and that the respondent will claim damages therefor from the city. Respondent was injured on the 17th of October, 1919, the original petition was filed on the 12th of November, 1919, and the amended petition was filed on the 8th of November, 1922. The trial was had in May, 1924. The city admits that the petition is sufficient notice if served on the mayor within the statutory period of ninety days provided it sets forth the information required by the statute. The contention rests on the failure of respondent to offer in evidence the original petition that the court might determine whether or not it sets forth the information required by statute to be contained in the notice to the mayor. It was not contended on the trial and is not contended now that plaintiff made any claim in the amended petition which was not made in the original petition. The city requested and was given full instructions on the merits of the claim. It suggested no question about the notice in the motion for a new trial, and no question was raised at any time about the sufficiency of the notice. In these circumstances *Page 1021 we think it should be conclusively presumed that the original petition stated "the place where, the time when such injury was received, the character and circumstances of the injury, and that the respondent would claim damages therefor from the city." This contention is overruled.
It follows that the judgment against defendants city of St. Louis and Serena Alexander should be affirmed. It is so ordered. All concur.