Emil Earl Corte v. St. Louis Public

On March 12, 1957, at 5:45 p.m. the plaintiff Emil Corte parked his automobile on Grand Avenue and proceeded on foot across the street to a drug store on the northeast corner of Natural Bridge Road and Grand Avenue. As he crossed the street, watching traffic, his right foot struck something and he fell on the pavement between the streetcar tracks and was injured. To recover damages for his resulting personal injuries Corte instituted this action against the City of St. Louis and the St. Louis Public Service Company. At the close of his evidence the plaintiff voluntarily dismissed the action against the city and a jury returned a verdict of $22,500 against the streetcar company. Four matters are briefed and argued upon this appeal by the streetcar company; one, that the trial court erred in not directing a verdict for the defendant company, two, that the court erred in admitting in evidence one section of the city charter, three, that the court erred in giving instruction 5, and, four, that the verdict is excessive and should be reduced by substantial remittitur. The contention that a verdict should have been directed is a three-pronged argument and inferentially involves the claim that the court erred in permitting counsel to read to the jury one section of the city charter. The defendant contends that there is no ""substantial evidence"" that defendant had either actual or constructive notice of the defect and that there is no evidence to support a finding that ""plaintiff was caused to fall as the result of a defect in the pavement between the streetcar rails."" As to the latter point it is said that plaintiff did not know what caused his fall, that after he fell ""he concluded that a defective portion of the pavement caused his fall."" But the first point in this connection is that there is no evidence that defendant owed ""any duty to the plaintiff at the time he fell."" As stated, plaintiff introduced in evidence Article 19 of the charter entitled ""Franchises,"" particularly Section 4, ""Maintenance of Streets by Street Railroads"" which requires street railroad companies ""to keep the street between the rails and between the tracks and to the extent of at least 12 inches outside of each rail in perfect repair and as nearly on a level with such rails as practicable."" It is said that this provision of the charter is only applicable to the relationship between the city and the defendant and does not set out any duty of the defendant to third parties. There was an ordinance, set forth in plaintiff's petition, requiring streetcar companies to maintain that portion of the street between their rails and it is urged that plaintiff's failure to introduce the applicable ordinance defeated its cause of action.