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eBook details

• Title: Bennie D. Wyatt and Beverly Wyatt V.
• Author : Missouri Court of Appeals Springfield District
• Release Date : January 19, 1974
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 64 KB

Description

As Bennie Wyatt was traversing defendant's sidewalk he allegedly stumbled and fell thereby, so it was averred, aggravating and activating pre-existing disabilities in his back, legs and body as a whole. Beverly, his wife, joined in suing defendant with a derivative claim for loss of consortium. Defendant denied the occurrence, denied the existence of any sidewalk defect, denied that plaintiffs, or either of them, had been damaged, and affirmatively pleaded that Bennie's fall, if so, resulted in his contributory negligence in failing to keep a lookout. The jury returned unanimous verdicts in defendant's favor. Thereafter the Circuit Court of Greene County sustained plaintiffs' motion for a new trial because ""the Court erred in giving instructions numbered 6 and 8 which unduly emphasized the issue of negligence in said converse instructions and that defendant was entitled to only one converse instruction on liability, and that prejudice resulted to plaintiffs as a result thereof."" Defendant appealed from the order granting the new trial. § 512.020 RSMo 1969. First we address ourselves to defendant's contention that instruction error, if any, is moot upon appeal because Bennie, ""as a matter of law, failed to exercise ordinary care for his own safety."" On July 2, 1971, a clear, sunny day, Bennie was employed as a taxi driver in Springfield. Near 9 a.m. he was dispatched to defendant's offices on St. Louis Street to secure and deliver to defendant's building on South Fremont Street a 12 - inch X 14 - inch brown envelope. Defendant's building on Fremont is situate on the east side of the north-south public way and is accessible to motor traffic by an east-west driveway leading eastward from the street. Extending north from the driveway and running along the west side of defendant's building is a sidewalk, six feet in width, which leads to the front or west entrance into defendant's building. About thirteen feet north of the extreme south end of the sidewalk, there was an expansion joint which divided the southern section of the sidewalk from what the witnesses referred to as the ""vestibule slab"" located across and in front of the entrance into the Fremont building. One of defendant's employees testified that an unevenness had existed in the sidewalk at the expansion joint for some four months before July 2, 1971, and that on the date of the casualty the east side of the south end of the vestibule slab was raised ""about three quarters of an inch"" above the slab immediately adjacent to and south of the joint. This witness further said that where the two slabs joined on the west side of the sidewalk the slabs were even. Relative to the difference of the two slabs, Bennie stated: ""I'd say two inches, I guess it would be that.""

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