Phelan v. Granite Bituminous Paving Co.

• Decision Date: 30 March 1910
• Citation: 127 S.W. 318,227 Mo. 666
• Parties: PHELAN v. GRANITE BITUMINOUS PAVING CO.
• Court: Missouri Supreme Court

127 S.W. 318

227 Mo. 666

PHELAN v. GRANITE BITUMINOUS PAVING CO.

Supreme Court of Missouri.

March 30, 1910.

Rehearing Denied April 26, 1910.

1. MUNICIPAL CORPORATIONS (§ 706) — NEGLIGENT USE OF STREET — ACTIONS — MISLEADING INSTRUCTIONS.

In an action for personal injuries by carelessly operating a steam street roller so as to frighten plaintiff's horse, the court instructed that, if plaintiff was driving at the place mentioned, and defendant ran the steam roller so that it made puffing or whistling noises, that plaintiff's horse, as a result thereof became unmanageable, and ran away and caused the injuries complained of, and that defendant's agent operating the machine saw that plaintiff's horse was becoming frightened at it and the noises in time to have stopped it and stopped the noises and prevented the horse from running away by ordinary care, and negligently failed to do so, defendant was negligent so as to authorize recovery if plaintiff's injuries were caused thereby. Held, that plaintiff was entitled to instructions on the theory that defendant negligently blew the steam whistle, frightening the horse; that, though no whistle was blown, defendant negligently operated the roller by emitting unusual noises not necessary to the operation of the roller — and the instruction given was misleading in mentioning together "puffing and whistling" as causes of fright, as the one might be a usual necessary noise, while the other might be unnecessary and negligent, and also misleading as tending to give the idea that defendant was negligent if the horse became frightened from the ordinary and necessary puffing of the machine, and only vaguely charged the theory of negligence by continuing the usual and necessary noises after defendant became aware of the horse's fright, and was erroneous.

2. TRIAL (§ 253) — INSTRUCTIONS — CONFORMITY TO ISSUES.

The instructions omitted the theory of negligence by making unusual and extraordinary noises.

Valliant, C. J., and Gantt and Woodson, JJ., dissenting.

In Banc. Appeal from St. Louis Circuit Court; Danl. D. Fisher, Judge.

Action by William J. Phelan against the Granite Bituminous Paving Company. From a judgment for plaintiff, defendant appeals. Reversed, and remanded for new trial.

See, also, 115 Mo. App. 423, 91 S. W. 440.

Percy Werner, for appellant. Claud D. Hall, for respondent.

LAMM, J.

Negligence — damages, $7,500. Defendant appeals. Assigned to division 2; the cause comes into banc on its order on a motion for rehearing. Error is assigned mainly on overruling a demurrer to the evidence (offered twice and twice refused), and on instructions; the breadth of the assignments seeking a close and full review of testimony and pleadings.

The negligence charged is in operating a steam street roller on Laclede avenue in St. Louis. The petition states that, as plaintiff was lawfully driving a one-horse wagon to the west on the north side of said avenue, a public street, the defendant, through its servants in charge of said roller at said point, "so carelessly, negligently, and recklessly managed and conducted" the roller "that the same scared" his horse, "and the said horse was caused to shy and run away. [The accident is here described, viz., the runaway; the wagon colliding with the curb and a box of street paving material, throwing plaintiff out and injuring him.]" Recurring again to the charge of negligence, the petition particularizes thus: "Defendant's said agents and servants in charge of said steam street roller knew and saw, or by the exercise of reasonable care could have known and seen, that the plaintiff's horse was being scared by the running and unusual puffing and frightening noises of the steam street roller, and that plaintiff's horse was about to run away, and that plaintiff was being placed in a position of peril, in time for defendant's said agents and servants to stop or check the running of said steam street roller and check its unusual puffing and frightening noises, and thereby prevent the plaintiff's horse from frightening and running away, and the injuries to the plaintiff. But that defendant's said agents and servants in charge of said steam street roller did, nevertheless, carelessly, negligently, and recklessly run and operate said steam street roller at an unusual speed, and with unusual and frightening noises, whereby plaintiff's horse was scared and ran away, and plaintiff was injured as aforesaid." Following these allegations, his injury is alleged (the loss of an eye), with his outlay, pain, loss of earnings, etc., praying damages for $7,500. By answer defendant denies generally, and for an affirmative defense alleges that, if the defendant was injured, as his petition states, his injuries were caused by his "own want of ordinary care in driving a blind horse with defective harnessing, and in a careless manner, upon said street in question, with full knowledge of and in full view of the said steam roller, which was then and there being operated in said street in pursuance of contract entered into by and between this defendant and the city of St. Louis." The answer next alleges that Laclede avenue, at the region in hand, was closed by authority of the street commissioner, and was marked as closed, in accordance with a city ordinance; "the northern half thereof being left open for the passage of street cars and the entrance of persons having business upon said street." Next, that by entering upon said Laclede avenue at that point and driving west the plaintiff "was guilty of want of ordinary care for his own safety, and of a violation of section 912 of the general ordinance provisions of the city of St. Louis." There is a further specification of contributory negligence, viz., that plaintiff had no business at that time on that part of Laclede avenue; that he had a perfectly safe route to his destination by using other streets in the vicinity; that to drive on Laclede avenue at that point, "while the work of reconstructing was in progress and a large steam roller in operation, with the material and appliances for reconstruction on said `street, was obviously dangerous; and that plaintiff voluntarily, and without any necessity therefor, chose the most dangerous of the routes open to him, and in so doing was guilty of the lack of ordinary care for his own safety." The reply was conventional.

It will serve a useful end to sift the undisputed from the disputed facts. Accordingly, in paragraph A of this statement, those undisputed will be assembled, viz.:

A. Laclede avenue runs east and west in St. Louis, with double street railway tracks in the center. From these tracks to either side of the street the curb is 15 feet away. Laclede in that region is crossed by three north and south avenues, viz., east of the accident by Grand, next west of Grand (and still east of the accident) is Spring, and west (a long block away) is Vandeventer. Between Grand and Vandeventer Laclede was in process of reconstruction by defendant under the supervision of the city authorities and a contract between defendant and the city. The north half of the street had been completed. While in actual use for travel by wheeled vehicles, it was also in use to store material and implements used in the reconstruction of the south half, then and for some time (with plaintiff's knowledge) actively in progress. At the point of the accident, viz., between Spring and Vandeventer, there was a heap of granite screenings or crushed granite on the north side of Laclede. The size of the heap is dark; one witness referring to it as a "load" — we infer a wagonload — another witness said it extended into the street about six feet. A very few feet from the curb and west of, but hard by, this heap was a two-wheeled handcart equipped with handles, bed, and funnel, its wheels 3½ feet high. Its use was to take loads of screenings from this heap and wheel them by hand to the south half of the avenue, where the screenings were scattered and used as a top dressing, and pressed and smoothed down by the roller's passing to and fro. Commencing not far from Grand and going west, the grade of Laclede is downhill to Vandeventer. At a certain time, say 8 o'clock, in the morning of October 3, 1904, after street work had commenced, plaintiff drove on Grand to Laclede, and turned west towards Vandeventer in plain view of the street reconstruction and the appliances and material in use. Across the south side of Laclede — i. e., from the car tracks to the curb — at Grand avenue there was a barricade of some sort. This he also saw. On this barricade was a notice as follows:

"Street Closed.

"This Street is Temporarily Withdrawn from Public Use.

"By Authority of the Municipal Code of St. Louis.

"Section 912. The street commissioner is authorized, with the approval of the mayor, to close any street, alley, public place or highway, and withdraw the same from public use temporarily, and during such period as public work thereon shall make such action necessary. Any person using or attempting to use said street, alley or public place or highway, so withdrawn from public use, or driving or attempting to drive any animal or vehicle thereon, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined not less than ten dollars nor more than fifty dollars for each offense.

"Section 913. It shall be the duty of the police within their respective districts to watch for and arrest persons violating the provisions of the above next preceding section.

                    "By order of F. W. Valliant
                                    Street Commissioner
                  "Approved: Rolla Wells, Mayor."
                

In addition to this notice the visible signs of street reconstruction were plain and plentiful from the junction of Grand and Laclede west to the junction of Vandeventer and Laclede, but, as said, the north half of Laclede was open and in use by those choosing to go along there. At this immediate time, not far from the heap of...