Haller v. City of St. Louis

• Decision Date: 27 May 1903
• Citation: 176 Mo. 606,75 S.W. 613
• Court: Missouri Supreme Court
• Parties: HALLER v. CITY OF ST. LOUIS.<SMALL><SUP>*</SUP></SMALL>

75 S.W. 613

176 Mo. 606

HALLER v. CITY OF ST. LOUIS.^*

Supreme Court of Missouri, Division No. 1.

May 27, 1903.

MUNICIPAL CORPORATIONS — STREETS — REPAIR—STEAM ROLLER—FRIGHTENING HORSE —LIABILITY OF CITY—QUESTION FOR JURY— ORDINANCE — VALIDITY — REQUESTED INSTRUCTIONS—APPEAL.

1. Failure to have a flagman to warn plaintiff, driving along a road, of the approach of a

steam roller, could not have been the proximate, or even the remote, cause of the injury to her, resulting from her horse taking fright at the roller and running away, where she knew herself of the presence of the roller.

2. Whether a summer road, over which plaintiff was driving when she was injured by reason of her horse taking fright at a steam roller, was a part of the main street alongside of which it ran, and which was being repaired by the city, and had been closed to the public, held under the evidence, to be a question for the jury.

3. Whether plaintiff was guilty of contributory negligence in driving along the summer road while the roller was in operation, and whether she assumed the risk, held, under the evidence, to be for the jury.

4. A municipal ordinance authorizing the street commissioner, with the approval of the mayor, to close any street and withdraw the same from public use temporarily, and to prohibit its use during such time as public work thereon should make such action necessary, etc., was not void, though, under the charter, power to open and close streets and regulate their use was vested in the municipal assembly.

5. A requested instruction covered by an instruction given by the court of its own motion is properly refused.

6. A verdict on conflicting evidence will not be disturbed on appeal.

Appeal from St. Louis Circuit Court; Jacob Klein, Judge.

Action by Lena Haller against the city of St. Louis. Judgment for defendant. Plaintiff appeals. Affirmed.

Johnson, Houts, Marlatt & Hawes, for appellant. Chas. W. Bates and Carl Unger, for respondent.

MARSHALL, J.

This is an action for $10,000 damages for personal injuries sustained by the plaintiff on May 11, 1898, on Broadway, opposite Bellefontaine Cemetery, and caused, it is alleged, by the negligence of the servants of the city in permitting an unusual amount of steam and smoke to escape from a steam street roller that was being used at that point in repairing the street, thereby making a loud noise, scaring the gentle horse that plaintiff was driving to a light spring wagon, and causing him to run away, turn the wagon over down an embankment, and injure the plaintiff. There was a verdict and judgment for the defendant, and after proper steps the plaintiff appealed.

The negligence charged in the petition is the failure to have a flagman to warn the plaintiff of the approach of the roller, and in allowing or causing the steam to escape and make a loud noise, and thereby scare the plaintiff's horse. The answer is a general denial, and a plea of contributory negligence.

Broadway, at the place of the accident, is 60 feet wide. There is no made sidewalk on either side. On the west side of the street there is a double street railway. From the street car tracks eastwardly the street is macadamized, making an improved street about 40 feet wide. East of the east line of the street, but not forming a part of the street, is what is termed a "summer road." It is unimproved, and is used by vehicles in dry weather. It is higher than the grade of the street. On the east of the summer road the land lies below the grade of the summer road, and below the grade of the street. To the east of the summer road the land slopes for about 10 feet to a barbedwire fence. For several weeks before the accident the city had been engaged in the work of repairing Broadway, by putting in new macadam, which was smoothed and crushed with a roller. At first a horse roller was used, but about two weeks before the accident, a steam roller was substituted, and was used thereafter. A block at a time was thus repaired. Some of the blocks were very long, being seven or eight hundred feet long. While the work was being done the street was temporarily closed. This was done by placing a "Street Closed" sign at either end of the block. The "Street Closed" sign consisted of a notice printed on white paper and attached to a stand about 2½ to 3 feet high, and a small red flag at the top of the stand. The notice and the city ordinance recited thereon were as follows:

"Street Closed.

"This street is temporarily withdrawn from public use by authority of Revised Ordinances of 1892:

"`Sec. 565. 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, 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.

"`Sec. 566. It shall be the duty of the police within their respective districts to watch for and arrest persons violating the provisions of the above section.'

"By order of A. N. Milner, Street Commissioner.

"Approved. Henry Ziegenhein, Mayor."

The plaintiff lived in Woodlawn, about three or four miles north of the place of accident. She had been in the habit of coming to the city two or three times a week to sell vegetables, butter, milk, cheese, and other farm products. Her customers lived generally on Broadway, south of the place where the accident occurred. She says she knew no other way to get to town, but she admits she knew that Calvary avenue runs west from Broadway between Bellefontaine and Calvary Cemeteries, which was north of the place of the accident, and the other evidence in the case, on both sides, shows that Calvary avenue goes to Florissant avenue, and that Florissant avenue runs north and south, just as Broadway does, and almost parallels Broadway at that point, and is, perhaps, not over half a mile west of Broadway, and that it also furnishes access to the city to the farmers living north of the city. The plaintiff knew that the city was repairing Broadway, and had seen the work progressing, the "Street Closed" signs used as aforesaid, and also the horse roller and the steam roller. She drove a gentle horse, that had been worked around a lumber yard in the city where the steam railroad cars were constantly passing, and he was not afraid of the steam or noise or whistle of such cars. For two weeks before the accident the plaintiff had passed the steam roller in use on Broadway two or three times each week, and the horse showed no signs of fear. On the day of the accident she approached the block where the street repairs were in progress, from the north. She was driving in the street car track on the west side of Broadway. When she got within about 150 feet of the "Street Closed" sign, she saw the steam roller just south of the sign. It was either standing still or moving very slowly. She turned off of the car tracks and drove onto the summer road, and proceeded southwardly. When she got about opposite the steam roller, her horse became suddenly frightened and unmanageable, and gave two or more jumps, and turned the wagon over down the incline on the east side of the summer road, ran into the barbed-wire fence, threw the plaintiff out of the wagon, and injured her.

There is a direct, sharp, and irreconcilable conflict in the evidence upon the question of the negligence charged against the defendant. The plaintiff's evidence is that neither she nor her witnesses saw a flagman before the accident, and that no warning was given to her of the approach of the roller. The defendant's testimony shows that there was a flagman regularly employed, who always went about 100 feet ahead of the roller and waved his red flag when a vehicle was approaching, and that the roller was stopped if the horses showed evidences of fear, and that the roller was stationary and the flagman there at and before the time of the accident, and that when the horse showed signs of fright the "straw boss" went to him and caught him by the bridle, but the horse broke loose from him and ran away and turned the wagon over. It is conceded by the plaintiff, however, that she knew that the repairs were going on, that the steam roller was being used, that the street was straight, and that she saw the roller 600 feet before she got to it, and turned off of the street about 150 feet north of the roller. Hence, having personal knowledge of the presence of the roller, this assignment of negligence becomes unimportant and immaterial, for she knew all that a flagman could or was intended to tell her of; and therefore the failure to have a flagman, if such was the fact, could not be the proximate, or even the remote, cause of the accident.

The evidence is also irreconcilably in conflict as to the other negligence assigned, to wit, that the city's servants allowed or caused the steam and smoke to escape from the roller and make a loud noise, and thereby frighten her horse. The evidence on both sides shows that when the roller is moving the steam makes a slight noise as it escapes through the exhaust, and that the weight of the roller crushing the macadam...