Ahlfeldt v. City of Mexico

• Citation: 129 Mo. App. 193,108 S.W. 122
• Parties: AHLFELDT v. CITY OF MEXICO.
• Decision Date: 08 February 1908
• Court: Court of Appeal of Missouri (US)

108 S.W. 122

129 Mo. App. 193

AHLFELDT v. CITY OF MEXICO.

St. Louis Court of Appeals. Missouri.

February 8, 1908.

1. MUNICIPAL CORPORATIONS — STREETS — OBSTRUCTIONS — NEGLIGENCE — CLOSING STREET FOR IMPROVEMENT.

A city closing a street to improve it must notify the public of its exclusion therefrom, and where, in closing a street, a city renders it dangerous, the city must exercise ordinary care to provide adequate danger signals to warn travelers of the danger; a traveler having the right to presume that the street is open for travel until he is given adequate notice to the contrary.

2. SAME — QUESTIONS FOR JURY.

Whether a city closing a street while improving it exercised ordinary care in providing adequate danger signals to warn travelers of the danger held, under the facts, for the jury.

3. SAME — ORDINARY CARE — EVIDENCE — CUSTOM.

In determining whether a city closing a street while improving it exercised proper care in providing adequate danger signals warning travelers of the danger, the questions are what an ordinarily prudent person would do under like circumstances toward notifying a traveler, and what an ordinarily prudent person would understand by the display of signals in a thoroughfare; and therefore evidence of custom in the city and neighboring cities relating to the display of danger signals is admissible.

4. SAME — EVIDENCE — ADMISSIBILITY.

Where, in an action against a city for injuries sustained by a traveler, it appeared that the city had closed a street while improving it, that it had strung a wire diagonally across the street, and that the only light exhibited was towards one side of it, evidence of the usual and customary signals was admissible, as bearing on the question of reasonable care on the part of the city, and as bearing on the question of the traveler's contributory negligence.

5. APPEAL — PRESENTATION OF QUESTION IN LOWER COURT — RULINGS ON EVIDENCE — REVIEW.

Though a party offering evidence must show in the appellate court clearly what he offered to prove, and its relevancy, before he will be entitled to have the action of the trial court in excluding his offer reviewed, yet, where the questions propounded and the trend of the examination clearly indicate that the answers will be pertinent and material, the matter is reviewable in the appellate court, and, where the counsel for the party complaining stated to the trial court that he desired to prove an affirmative answer to each of the questions propounded, the exclusion of the evidence was reviewable.

6. MUNICIPAL CORPORATIONS — INJURY TO TRAVELERS — CONTRIBUTORY NEGLIGENCE.

Whether a traveler, injured while driving on a city street, exercised ordinary care after discovering a danger signal displayed in the street, held, under the facts, for the jury.

Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.

Action by H. L. Ahlfeldt against the city of Mexico. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

P. H. Cullen, for appellant. A. C. Whitson and O. Hitt, for respondent.

NORTONI, J.

This is an action for personal injuries said to have accrued to plaintiff by virtue of the defendant city's negligence in failing to properly notify the plaintiff and other members of the public that a certain public street, then being paved, was withdrawn from public occupation. The plaintiff is a traveling agent, engaged in selling threshing machines, sawmills, etc. He had been prosecuting his calling in the country several miles from the city of Mexico, and was returning therefrom to the hotel in that city at the time of his injury. The surface of one of the city's principal streets, Jefferson street, had been lowered some six or eight inches preparatory to paving the same, and the street had been withdrawn from public travel. The plaintiff was not a resident of the city. He had no knowledge of the street improvement, or that it was temporarily withdrawn from use. The street mentioned runs north and south. In order to prevent persons from driving over the portions thereof being improved, the city had caused to be stretched across the same just south of the portion involved a small wire, said to be an ordinary telephone wire, about the size of the lead in a pencil. One end of this wire was made fast to a telephone pole and the other to a tree, each adjacent to the sidewalk on either side of the street. One end of the wire was probably 15 feet farther south than the other; the wire being drawn diagonally across the street. The plaintiff was returning from the country driving in a "jog trot." As the team ran into the wire the wire became disconnected at one or both ends. The horses instantly became frightened on account of becoming entangled in the wire, turned the carriage over, injured the plaintiff severely, and ran away. The negligence relied upon is that the city was derelict in not providing sufficient warning or notice that the street was obstructed by the wire and withdrawn from public use. It is conceded the city had placed only one red light in the entire street at the point in question, and the evidence on the part of plaintiff tends to prove this was a common coal oil lantern reflecting a very dim red light, which light was near to one side of the street, and not in or near the center thereof. It is insisted that the city should have placed two or three lights across the street at the point in question in order to have discharged its duty to warn or notify the public of the presence of the wire across the same. The case proceeds upon the theory that one light was...