Ashby v. Elsberry & N. H. Gravel Road Co.

• Decision Date: 03 March 1903
• Citation: 73 S.W. 229,99 Mo. App. 178
• Court: Missouri Court of Appeals
• Parties: ASHBY v. ELSBERRY & N. H. GRAVEL ROAD CO.

73 S.W. 229

99 Mo. App. 178

ASHBY v. ELSBERRY & N. H. GRAVEL ROAD CO.

Court of Appeals at St. Louis, Missouri.

March 3, 1903.

TURNPIKES — WIDTH OF ROAD — DUTY TO REPAIR — LIABILITY TO TRAVELERS — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE.

1. Rev. St. 1889, § 2696, requires gravel road corporations to construct a road not less than 20 feet wide, including side drains. Held that, in the absence of evidence showing a necessity for the construction of a road of less width at a particular point, a gravel-road company is obliged to maintain a safe road for travel of the width of 20 feet.

2. A private corporation operating a road for toll is under obligation to maintain in reasonably safe repair whatever parts of its road it keeps open or permits to be used for travel.

3. The failure of a gravel-road corporation to maintain a road of the width of 20 feet, as required by Rev. St. 1889, § 2696, constitutes negligence for which a recovery may be had by a person whose injuries result from such failure.

4. Evidence showing that the road upon which plaintiff was driving was narrow, and consisted of an embankment unguarded on either side except by wires strung on posts, and that plaintiff was injured by her horse taking fright and overturning her wagon at the side of the road, sufficiently tends to show that the proximate cause of the injury was the narrow and defectively guarded condition of the road.

5. Where the bad repair of a highway is the proximate cause of an injury to a person driving on it, the corporation maintaining the highway is liable for such injury, although the fright of the horse from the presence of cows on the road is also a contributory cause.

6. It is not negligence for a person knowing the defective condition of a road to travel over it to her home, unless the road is so dangerous that a person of common prudence would decline the risk.

7. It is not negligence in a corporation maintaining a turnpike to allow cows to occasionally stray on the road from intersecting cross-roads, and graze along its borders.

Appeal from Circuit Court, Lincoln County; E. M. Hughes, Judge.

Action by Anna L. Ashby against the Elsberry & New Hope Gravel Road Company. From a judgment for plaintiff, defendant appeals. Reversed.

Dudley, Wheeler, Powell & Dyer, for appellant. Norton, Avery & Young, for respondent.

Statement of Facts and Opinion.

GOODE, J.

The appellant is a corporation organized under article 4, c. 42, of the Revised Statutes of 1889, and owns and operates a gravel road running between the towns of Elsberry and New Hope, in Lincoln county, a distance of five miles. The respondent received a personal injury on said road in June, 1900, while driving a horse hitched to a spring wagon. She was going to her home from Elsberry, in company with her little daughter, about 6 o'clock in the evening, and the horse she was driving became frightened by two cows on the road, one of which jostled the horse, and caused him to shy to the south side of the road, partially capsizing the wagon, which was prevented from overturning by falling against a post. Plaintiff's arm was broken, besides other injuries she received, and this action was instituted to recover damages therefor, respondent charging in her petition that the appellant company was negligent in permitting cows to graze along the road and obstruct the free passage of vehicles thereon; also in not making the roadway of the statutory width at the point where the accident occurred, but constructing it much narrower, with a raised track in the center and steep declivities at the side, so that a wagon driven on one of the banks, or forced there by an emergency, would turn over. The accident occurred just east of a bridge over a gully or branch, and the testimony shows the driveway for some distance east of the bridge was from 12 to 14 feet wide, and consisted of an embankment several feet high, unguarded on either side by anything but wires attached to posts. This construction was doubtless adopted to raise the roadbed to the level of the bridge, which the testimony shows was about 16 feet in width. It appears the entire length of the road had been fenced by the owners of abutting farm lands, except where cross-roads intersected. Cattle occasionally strayed on the pike from the intersecting roads, were tolerated there, and allowed to graze along the borders of the pike; particularly cattle belonging to a farmer of the name of Sadawhite, to whom the cows belonged which frightened respondent's horse. As stated, the contention of the respondent is, and so she charges in her petition, that permitting cattle to run along the road was a negligent act, which obstructed travel, and rendered it dangerous. Further, that the statutes required the roadbed to be 20 feet in width, whereas it was much less than that where the respondent was hurt; that her injuries were due to the narrowness of the roadbed and the steepness of its sides, or at least that those circumstances directly contributed to cause her injury.

Appellant contends respondent was guilty of contributory negligence in having an umbrella hoisted to shelter her from a falling shower, which prevented her from seeing ahead and properly handling her horse; also that the appellant was not bound to keep a gravelled roadbed 20 feet wide, but only one of sufficient width to accommodate ordinary travel, and that where the respondent was injured the road was sufficiently wide and perfectly safe.

There was contradictory evidence on the issue of respondent's contributory negligence, as there was likewise testimony to prove the construction of the roadway where she was hurt was unsafe on account of its narrowness and sloping sides. One witness, at least, testified two wagons could not pass there.

The errors assigned relate to the instructions given and refused. Several instructions were given at the instance of appellant, the purport of which was that the respondent was bound to exercise ordinary care and reasonable prudence in driving along the road, and that she could not recover if her injuries were the result of her own carelessness, or her carelessness contributed to cause them, whatever the negligence of the appellant may have been. The instructions given concerning appellant's duty in regard to its road charged that appellant was bound to keep it in safe condition for travel over a width of 20 feet, and this view is said to be erroneous.

The statute under which the appellant incorporated required it...