
    Etta Mann, Appellant, v. Alonzo L. Pulliam and Ruby Pulliam.
    127 S. W. (2d) 426.
    Division Two,
    April 20, 1939.
    
      
      Brownrigg & Muldoon and Douglas W. Robert for appellant.
    
      Joseph N. Eassett and Ernest E. Baker for respondents.
   "WESTHUES, C.

Appellant, Etta Mann, filed this suit against respondents to recover. $8,000 in damages for personal injuries alleged to have been sustained when she fell while descending steps in front of the-home of respondents. A. jury returned a verdict for respondents and appellant appealed. .

The only points briefed by appellant concerned tbe correctness of tbe instructions given by tbe trial court at respondents’ request. Respondents contend that tbe instructions conformed to tbe law, but tbey also argue that tbe evidence was insufficient to .have supported a verdict for plaintiff, hence, if any instructions were erroneous tbey were harmless. Appellant and a Mr. and Mrs. Harting, on invitation of respondents, spent tbe afternoon and evening of tbe day the accident occurred at respondents’ home. It was purely a social visit. Tbe visitors started to leave for their homes at about 10:30 p. m. Appellant in her brief stated tbe facts as follows:

‘ ‘ There is a front porch to tbe bouse and steps leading down to a short granitoid walk, which leads to tbe second set of steps from tbe terrace to tbe public sidewalk.

‘ ‘ Tbe accident happened on tbe first set of steps of tbe porch. There are sis steps leading from tbe porch to tbe walk, tbe upper five steps are of wood, and tbe lowest step is of concrete, made of' tbe same material and is of tbe same color as tbe short concrete walk, which leads to tbe second set of steps.

“There was a small light in tbe ceiling of tbe porch, and a street lamp diagonally across tbe street. It was raining and was misty and tbe street light was somewhat blurred. It was dark.

‘ ‘ Tbe plaintiff stepped down tbe wooden steps, one step at at time, placing her right foot down first and then bringing her left foot to tbe same step. These wooden steps were dark gray. When she came to tbe last.wooden step there was a flash of light, and she saw before her granitoid in front of tbe wooden steps. This appeared to her to be tbe walkway, but it was, as stated before, the last step, which was of the. same color.and material as tbe walkway, and lighter than the wooden steps.

“As tbe plaintiff stepped from tbe lowest wooden step, she was then upon tbe last step, which was tbe granitoid. Taking this to be tbe walkway, she stepped forward to move down tbe walkway, but owing to tbe fact she was on this step, her forward step caused her to lose her balance and fall on tbe granitoid walkway.

“Plaintiff has been over these steps, coming and going, about four times, twice after dark and twice in tbe daylight.. When she visited the bouse at 3:00 or 4:00 o ’clock that Sunday afternoon it was a cloudy and hazy day. She bad never noticed tbe steps before, never bad paid any particular attention to them. ■ She knew; there .were wooden steps to the bouse. Knew tbe steps to tbe public walkway were concrete, but she did not know tbe composition of tbe bottom step. She bad not been to that bouse within a year before this visit.”

Tbe sole issue on the question of liability is whether tbe respondents. can be adjudged guilty of negligence in maintaining tbe steps and walk as described in the evidence, that is, having the five wooden steps painted gray and the lower step and walk of concrete material a natural color, or unpainted, leaving the lower step and walk a different color than that of the five upper steps.

We are of the opinion that this state of facts did not prove actionable negligence. In 45 Corpus Juris, 632, section 2, we find the following quotation taken from Grein v. Yohon, 103 Misc. 378, 385, 170 N. Y. Supp. 178:

“Negligence is aii unintentional breach of a legal duty causing damage reasonably forseeable without which breach the damage would not have occurred.” (Italics ours.)

This court has made similar rulings in a number of cases. Note what was said in American Brewing Assn. v. Talbot, 141 Mo. l. c. 683, 42 S. W. 679, l. c. 682, 64 Am. St. Rep. 538, quoted and approved in Wecker v. Grafeman-McIntosh Ice Cream Co. et al., 326 Mo. 451, 31 S. W. (2d) 974, l. c. 977 (2):

“ ‘Numerous authorities hold that it is not negligence not to take precautionary measures to prevent an injury, which, if taken, would have prevented it, when the injury could not reasonably have been anticipated and would not, unless under exceptional circumstances, have happened.’ [American Brewing Assn. v. Talbot, 141 Mo. l. c. 683, 42 S. W. 679, l. c. 682, 64 Am. St. Rep. 538.] ”

Immediately following that we find the following quotation taken from Ray on Negligence of Imposed Duties, page 333:

‘ ‘ ‘ The proper inquiry is not whether the accident might have been avoided if the one charged with negligence had anticipated its occurrence, but whether, taking the circumstances as they then existed, he was negligent in failing to anticipate and provide against the occurrence.’ ”

Can it be said that a reasonable person should have foreseen that someone might sustain an injury as plaintiff did in this case? We think not. If not, then respondents cannot be held liable under the law of negligence. This is supported by the .authorities cited above. For other authorities so holding see Chadwick v. Bush, 163 So. (Miss.) 823; Iillinois Cent. Railroad Co. et al. v. Nichols, 118 S. W. (2d) (Tenn.) 213; Paulscak v. Hoebler et al., 198 Atl. 646, 330 Pa. 184; St. Louis, S. F. & T. Ry. Co. v. Gore, 69 S. W. (2d) (Tex.) 186; Wilford v. Cooper, 98 S. W. (2d) (Ky.) 39. In the latter case the court said-:

“Negligence is not determined by what any one looking back after the accident sees should have been done, but by what the ordinarily careful man under the circumstances existing before the accident would foresee and deem should be done. ”

The judgment is affirmed.

Cooley and Bokling, CC., concur.

PER CURIAM: — The foregoing opinion by Westi-iues, C., is adopted as the opinion of the court.

All the judges concur.  