Auslander v. St. Louis, 29992.

• Decision Date: 08 February 1933
• Docket Number: No. 29992.,29992.
• Citation: 56 S.W.2d 778
• Parties: ANNA AUSLANDER, Appellant, v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

56 S.W.2d 778

ANNA AUSLANDER, Appellant, v. CITY OF ST. LOUIS.

No. 29992.

Supreme Court of Missouri, in Banc.

February 8, 1933.

Appeal from Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.

AFFIRMED.

Grimm & Mueller for appellant.

(1) The construction and maintenance of streets by a municipal corporation is a private corporate function, and not a municipal function, and a city is liable in damages for injury caused by its negligence in the exercise of such function. Tritz v. Kansas City, 84 Mo. 639; Loewer v. Sedalia, 77 Mo. 443; Kiley v. Kansas City, 87 Mo. 107. (2) It is the duty of a city to keep its streets in a reasonably safe condition for travelers passing over them in any and all modes, provided only (a) such modes are lawful and (b) do not of themselves constitute negligence in the traveler to a degree forbidding his recovery. Hunt v. St. Louis, 278 Mo. 213; Sexton v. City, 93 S.E. 180; Scanlon v. Kansas City, 19 S.W. (2d) 522; Elliott, "Roads and Streets," section 790; Burns v. St. Joseph, 91 Mo. App. 487; Beebe v. Kansas City, 34 S.W. (2d) 57; Williams v. Mexico, 34 S.W. (2d) 992. (3) And this duty remains, even though the act creating the unsafe condition be the exercise of a governmental function. Sprague v. St. Louis, 251 Mo. 629; Nelson v. Kansas City, 170 Mo. App. 547; Gibbs v. City, 163 Mo. App. 105; Gallagher v. City, 133 Mo. App. 557; Horan v. City, 176 S.W. 1061; Cassidy v. St. Joseph, 247 Mo. 197. (4) A street is defective or out of repair whenever it is not reasonably safe for travel by the usual means by day or night. Holsberry v. Elkins, 86 W. Va. 487, 103 S.E. 271; Watson v. Parker, 113 Kan. 130, 213 Pac. 1051; Beebe v. Kansas City, 34 S.W. (2d) 57. (5) The fact that the traffic signal was not operating at all in a north-south direction and was operating and indicating "Go" in an east-west direction was an inherently dangerous condition and rendered the street at that point unsafe for traffic. Aaronson v. New Haven, 12 L.R.A. 328; Vicksburg v. Harralson, 136 Miss. 872; Titus v. Bloomfield, 80 Ind. App. 483; Hobart v. Casbon, 142 N.E. 138; Wells v. Kenilworth, 228 Ill. App. 332. (6) It is not necessary to a recovery against a municipality that its neglect to keep its street in repair shall be the sole cause of the injury, but the injured party may recover where he is in the exercise of ordinary care and prudence and the injury results partly from the defective street and partly from another cause. Vogelsang v. St. Louis, 139 Mo. 127. (7) The duty of a municipality is not merely to repair the surface of the street and keep it free from obstructions, but to prevent, correct or remove conditions generally in and about the street which render it unsafe for traffic in the ordinary modes. Loth v. Theater Co., 197 Mo. 328; Lundy v. Sedalia, 162 Mo. App. 218; Campbell v. Chillicothe, 239 Mo. 455; Shippey v. Kansas City, 254 Mo. 1; Beebe v. Kansas City, 34 S.W. (2d) 57; Aaronson v. New Haven, 12 L.R.A. 328; Vicksburg v. Harralson, 136 Miss. 872; Titus v. Bloomfield, 80 Ind. App. 483; Hobart v. Casbon, 142 N.E. 138; Wells v. Kenilworth, 228 Ill. App. 332. (8) A municipality so performing any of its functions as to create or commit a nuisance is liable in damages to one injured thereby. 46 C.J. 663; 43 C.J. 997; District of Columbia v. Latten, 5 Fed. (2d) 374, 70 L. Ed. 412; Johnson v. City, 147 N.E. 451, 316 Ill. 598; Kent v. City, 152 N.W. 6, 170 Iowa, 80; State v. Carpenter, 31 N.W. 730, 68 Wis. 165; Seibert v. Mo. Pac., 188 Mo. 668. (9) A police officer is an agent of the city, and his knowledge of a defective condition of a street is notice to the city. Carrington v. St. Louis, 1 S.W. 240, 89 Mo. 208, 58 Am. Rep. 108; Willis v. St. Joseph, 171 S.W. 27, 184 Mo. App. 428; Adelman v. Altman, 240 S.W. 272, 209 Mo. App. 583.

Julius T. Muench, Oliver Senti and Thomas F. Muldoon for respondent.

(1) A municipality is not liable in damages for negligence in the exercise of its governmental functions. Healy v. Kansas City, 277 Mo. 619; Zummo v. Kansas City, 285 Mo. 222; Behrman v. St. Louis, 273 Mo. 578; Stater v. Joplin, 189 Mo. App. 383; Cassidy v. St. Joseph, 247 Mo. 197; McKenna v. St. Louis, 6 Mo. App. 320; Seibert v. Railroad, 188 Mo. 657. (2) The regulation of traffic by a municipal corporation is carried out through its police powers, and therefore is an exercise of governmental function. St. Louis v. Hammond, 199 S.W. 411; Sluder v. Transit Co., 189 Mo. 107; Young v. Dunlap, 190 S.W. 1041; Bradley v. City of Oskaloosa, 193 Iowa, 1072; Ex parte Cavanaugh v. Gerk, 313 Mo. 375.

FRANK, J.

Action to recover damages for alleged personal injuries. The case was heard by a jury. At the close of plaintiff's evidence the court sustained a demurrer thereto, and plaintiff took an involuntary nonsuit with leave. A motion to set aside the nonsuit was filed and overruled and plaintiff appealed.

The case was heard in Division Number One where an opinion written by STURGIS, C., was not adopted and the cause was transferred to court en banc where it was again argued and submitted. The opinion written by Commissioner STURGIS in division reads as follows:

"Plaintiff brings this action to recover for personal injuries received by her on account of alleged negligence of the defendant in the maintenance and operation of an automatic stop and go signal at a street crossing in St. Louis, which, on the occasion of her injury, failed to operate. It is claimed that by reason of the failure of this signal to give a proper warning as to when to go and when to stop, the automobile in which plaintiff was riding with her husband collided with another automobile crossing the street intersection at right angles. This signaling device was such as is commonly used at street intersections to direct and permit traffic in one direction for a short time and then by a proper signal hold the traffic going in that direction for a like interval and permit that going at right angles to proceed, thus avoiding conflicting currents of travel. The signal device took the place of a traffic policeman in regulating and directing traffic. It is not claimed that the signaling device constituted an obstruction to the street or that plaintiff was injured by any collision with the signal post.

"Plaintiff testified, and the evidence stands uncontradicted, that she and her husband were traveling south on Leonard Avenue, a north and south street, in their automobile driven by the husband in the early morning about daylight; that Belle Avenue crosses Leonard Avenue at right angles and that plaintiff and her husband knew of this automatic signal placed at the middle of the intersection of these two streets for the purpose of alternately directing traffic on one street and then on the other; that on this morning as plaintiff approached the intersection she and her husband looked and discovered that the signal was not working; that there was no signal to indicate when to proceed or when not to proceed across Belle Avenue; that plaintiff supposed also that the signal was not working as to east and west traffic on Belle Avenue, but in this she was mistaken. Plaintiff and her husband therefore proceeded to cross Belle Avenue and when they were about half way across an automobile came from the east on Belle Avenue and was crossing Leonard Avenue and the two machines collided at the intersection. The driver of the other automobile coming from the east testified that from his viewpoint the signals were working and that when he attempted to cross the intersection of the two streets the signal was in his favor. Both drivers claim not to have discovered the other till too close to avoid the collision.

"It also stands uncontradicted that this automatic signal had not been properly working for some hours and that the policeman on duty in the vicinity of the accident discovered shortly after midnight, some five hours before the accident, that the light bulb which illuminated two sides of the automatic signal had burned out and was not operating, and this fact he communicated to the traffic division of the Police Department having charge of these signals. No action, however, was taken to correct the defect.

"The charge of negligence is `that defendant knew, or by the exercise of ordinary care could have known, that this automatic traffic signal was out of repair, and that the lights therein signaling south bound traffic on Leonard Avenue (the direction in which plaintiff was going) were not burning, but that said defendant failed and neglected to have said signal and said lights repaired, and failed and neglected to post a notice on said signal indicating that same was out of order; that the lights on the east face of said automatic signal were in operation and indicated that east and west bound traffic should proceed; that the defendant, city of St. Louis, its agents and employees, knew, or by the exercise of ordinary care could have known, that the lights on the east face of said signal were operating, while the lights on the north face of said signal were not operating, and that such condition would inevitably result in collision between intersecting vehicles, but that defendant failed to turn off all lights in said signal or to post a notice on all faces of said signal that same was out of order.'

"The case was heard by a jury and at the close of plaintiff's evidence the court sustained a demurrer thereto and was about to direct a verdict for defendant, which plaintiff averted by taking a nonsuit with leave. A motion to set aside the nonsuit was filed and overruled and plaintiff has appealed.

"It is conceded that the trial court sustained the demurrer to the evidence on the theory that in maintaining and operating this automatic traffic signal the defendant city was engaged in the performance of its purely governmental powers and functions for the benefit and safety of the general public, and that when so engaged in discharging...