Baranovic v. Moreno Co.

• Decision Date: 01 April 1938
• Docket Number: No. 35178.,No. 35177.,35177.,35178.
• Citation: 114 S.W.2d 1043
• Parties: GEORGE BARANOVIC v. C.A. MORENO COMPANY and CITY OF ST. LOUIS, Appellants.
• Court: Missouri Supreme Court

114 S.W.2d 1043

GEORGE BARANOVIC v. C.A. MORENO COMPANY and CITY OF ST. LOUIS, Appellants.

No. 35177.

No. 35178.

Supreme Court of Missouri.

Division One, April 1, 1938.

Appeal from Circuit Court of City of St. Louis. — Hon. J.W. McAfee, Judge.

REVERSED.

E.H. Wayman and Louis A. McKeown for City of St. Louis.

(1) Proof of either actual or constructive notice upon the part of the city of St. Louis of the alleged unsafe condition is necessary. Johnston v. Kansas City, 211 Mo. App. 262, 243 S.W. 265; Plater v. Mullins, 223 Mo. App. 650, 17 S.W. (2d) 658; Nimmo v. Perkinson Bros. Const. Co., 85 S.W. (2d) 98; Hunt v. St. Louis, 278 Mo. 213, 211 S.W. 673; McMahon v. Greenspons, 267 S.W. 83. There was no evidence that the alleged unsafe condition was known to the city for a sufficient length of time prior to the accident, that the city of St. Louis could have, by the exercise of ordinary care, remedied the alleged unsafe condition. (a) The plaintiff was guilty of contributory negligence as a matter of law. Sec. 7775, R.S. 1929; Welch v. McGowan, 262 Mo. 709, 172 S.W. 18; Jackson v. Southwestern Bell Tel. Co., 281 Mo. 358, 219 S.W. 655; Sloan v. American Press, 327 Mo. 470, 37 S.W. (2d) 884; Sheffer v. Schmidt, 324 Mo. 1042, 26 S.W. (2d) 592; Eisele v. Kansas City, 237 S.W. 873; Ryan v. Kansas City, 232 Mo. 471, 134 S.W. 566; Hunt v. St. Louis, 278 Mo. 213, 211 S.W. 673; Hamra v. Helm, 281 S.W. 103. (b) The alleged negligence of defendant city was not the proximate cause of the injury to plaintiff. Borack v. Mosler Safe Co., 288 Mo. 83, 231 S.W. 623; Madden v. Red Line, 76 S.W. (2d) 438; Howard v. Knutson, 229 Mo. App. 267, 77 S.W. (2d) 161; Solomon v. Duncan, 194 Mo. App. 517, 185 S.W. 1141; Pugh v. Catlettsburgh, 214 Ky. 312. (c) The barricade, erected to protect the public, was not such an obstruction in the street as to amount to a nuisance, and the city has the power and the duty to allow such obstructions to be erected in its governmental capacity, and is not liable for negligence in maintenance of same. Seibert v. Mo. Pac., 188 Mo. 657; Prewitt v. St. Joseph, 334 Mo. 1228, 70 S.W. (2d) 916; Collier v. Ft. Smith, 68 L.R.A. 237. (2) The city of St. Louis is not liable for the violation of its own ordinance nor for failure to enforce such police regulation, and hence it was error to give Instructions 1 and 2. Ryan v. Kansas City, 232 Mo. 484, 134 S.W. 568; Strother v. Kansas City, 316 Mo. 1073, 296 S.W. 795; Hunt v. St. Louis, 278 Mo. 230, 211 S.W. 673; Butz v. Cavanaugh, 137 Mo. 510.

Green, Henry & Remmers for C.A. Moreno Company.

The trial court erred in refusing to give a peremptory instruction in favor of the appellant, C.A. Moreno Company, both at the close of plaintiff's evidence and at the close of all the evidence in the case, because all the evidence in the case, clearly showed that the plaintiff was guilty of contributory negligence as a matter of law. Sec. 7775, R.S. 1929; Welch v. McGowan, 262 Mo. 709; Jackson v. Southern Bell Tel. Co., 281 Mo. 358; Sloan v. American Press, 327 Mo. 470; Sheffer v. Schmidt, 26 S.W. (2d) 592, 324 Mo. 1042.

Francis Kane, Frank A. Wesley and Earl M. Pirkey for respondent.

The first point made by this appellant is that plaintiff should have been non-suited because there was no evidence of actual or constructive notice on the part of the city of the condition of the barricades. Actual or constructive notice is necessary but in this case there was both actual and constructive notice. Meahan v. St. Louis, 217 Mo. 46; Plater v. Mullins, 17 S.W. (2d) 666. While the city is not responsible for failure to enforce its police regulations it is responsible for a failure to use care required by the ordinance to keep the barricade and keep it reasonably safe. Ely v. St. Louis, 181 Mo. 730; Berry v. Sedalia, 201 Mo. 439; Plater v. Construction Co., 17 S.W. (2d) 666; Salmon v. Kansas City, 241 Mo. 42, 145 S.W. 16, 39 L.R.A. (N.S.); Hunt v. St. Louis, 278 Mo. 230.

HYDE, C.

This case, recently reassigned to the writer, is an action for damages for personal injuries. Plaintiff obtained a verdict for $25,000 against both defendants. The trial court ordered a remittitur of $7500 which was made, and judgment was entered for $17,500. Both defendants have appealed from this judgment.

Both defendants (hereinafter referred to as City and Moreno) contend that the court should have directed a verdict against plaintiff because he was guilty of contributory negligence as a matter of law. Plaintiff was injured when his automobile ran against a barricade in the center of Gravois Avenue in St. Louis on December 9, 1931. At that time, the pavement on Gravois (running southwest to northeast) was being widened and reconstructed. This work had been going on for some months and some parts of the street were entirely completed. Between Jefferson Avenue and Arsenal Street, a distance of seven blocks, the city had completed a pavement (with a concrete base and asphalt surface) twenty-nine feet wide on the south side of the street. The pavement on the north side had not been opened for traffic. In the center portion seventeen feet wide, where the street car tracks had been, Moreno was "putting in macadam and cinders as a temporary paving." This part of the street was only opened that day, and "Gravois wasn't made then from Thirteenth Street to Jefferson." From Jefferson to Arsenal, on each side of the center strip, Moreno had constructed a barricade. This was built with two by eight boards fourteen to sixteen feet long. "Some of those boards extended from one A-frame to the other, and some, the end rested on the ground (and) extended up over the cross-pieces ... above the surface of the ground ... about three feet; (these) pointed to the southwest... . They were in an even line" (according to plaintiff's witness Gundlach, a former city engineer who said he inspected them "once a day at least, and sometimes twice a day"). This witness also said: "I didn't visit the job at nighttime, but I knew the lights were there; I visited the work once or twice at night and saw lights burning."

Plaintiff was a motor mechanic and an experienced driver. On the night of the accident he took two companions in his car to a church basketball game at Morganford and Chippewa streets. They started about 8:45 P.M. from St. Lucas Hall at Thirteenth and Gravois. The shortest way there would have been out Gravois to Chippewa, but they did not attempt to go that way because they knew that Gravois was torn up from Thirteenth to Jefferson ("it was blocaded" at their starting point). They also knew that there was construction work going on from Arsenal to Jefferson. On the way out, they detoured to the east and south around all of this part of Gravois, going out Thirteenth to Cherokee and thence west to Morganford, so that they crossed Gravois south of Arsenal. After the basketball game, they went to the home of plaintiff's brother at Ellenwood and Morganford. There they drank "home brew" (plaintiff drank "about three glasses"); starting back shortly after midnight. They were all accustomed to drinking beer and claimed that this beer had no effect on any of them. On the way back, they drove on Morganford to Chippewa, on Chippewa to Gravois, and then northeast on Gravois. There was a drizzling rain, which had been falling all evening, and the streets were slippery. It was also foggy. When they reached Arsenal they all saw the beginning of the barricades in the middle of the street with lights on them.

Plaintiff testified as to the occurrence of his injury (about fifty feet beyond the Oregon Avenue intersection about two blocks from Arsenal), as follows:

"Q. Could you see how the barricades were there? A. I saw them there; they were irregular... . Q. Now, these that you saw along there, about how far out did they extend from the cinder, or torn-up part of the street? A. Some were off about a foot, and some two feet... . Q. Now, what was the condition of Gravois there from Arsenal down to where you were hurt? A. It was slippery... . (Plaintiff said that he had put the brakes on "up the street, when the traffic was moving around (and) felt the car sliding at that time.") Q. What made it slippery, the rain or what? A. It was a sort of white-looking stuff on it, and mud was on it... . Q. Now, as you approached Oregon, or just before you got hurt, had you made any change ... in the speed of the car you were driving? ... Yes, sir; I did... . As I come down there was a car in front of me, and I had an intention to pass that car and the car swerved over to the left, and as it swerved over to the left I slowed up and came back, and I saw a board out in the street, and it came through the car and hit me. Q. How far away from the front — how far from the windshield was that when you first saw it? A. I guess it was about four feet in front of me when I noticed it. Q. How far had you been driving from the center path? A. I guess about five or six feet. Q. How far out was this board from the cinder path, the end of this board? A. I would judge it would be about four feet from the cinder path... . Q. About how high was the end of that board from the surface of the street? A. I judge it to be around about four feet... . Q. Were there any street lights on Gravois? A. Yes, sir. Q. It was a well-lighted street, wasn't it? A. Quite, ... but it did not show up very well that night ... because it was a sort of fog and drizzle... . (From deposition) `Q. Did you see any lights on it (the barricade)? A. No, sir. Q. You were not noticing that? A. I didn't see it, I didn't see any lights there, or anything like that; of course, I was paying attention to my driving. Q. You wouldn't say whether there were or there were not? A. No, sir; I didn't pay no attention whether there was or was not. Q. Would you say whether there were any lights or not? A. I wouldn't say that there wasn't any lights there, because I didn't see any. Q. But you wouldn't state that...