Bean v. City of Moberly

• Decision Date: 25 March 1943
• Docket Number: 38291
• Citation: 169 S.W.2d 393,350 Mo. 975
• Parties: W. H. Bean, Respondent, v. City of Moberly, Missouri, a Municipal Corporation, Appellant
• Court: Missouri Supreme Court

169 S.W.2d 393

350 Mo. 975

W. H. Bean, Respondent, v. City of Moberly, Missouri, a Municipal Corporation, Appellant

No. 38291

Supreme Court of Missouri

March 25, 1943

Appeal from Randolph Circuit Court; Hon. A. R. Hammett Judge.

Reversed and remanded.

A R. Marshall and Hunter & Chamier for appellant.

(1) The court erred in admitting in evidence, over defendant's objection, the provision of the city ordinance, requiring that excavations and obstructions be enclosed by sufficient barriers, not less than three feet high, and that a red light be put up from sunset to sunrise at each end of such excavation or obstruction. This ordinance provision was irrelevant and inadmissible. The enactment of such a city ordinance is a legislative act, and no liability is incurred by the municipality, for its failure to enforce the same. It was a pure police regulation, enacted for the guidance of the conduct of the citizen, rather than for the conduct of the city itself. It constituted no proof of negligence. Ryan v. Kansas City, 232 Mo. 471; Mehan v. St Louis, 217 Mo. 35; Loth v. Columbia Theatre Co., 197 Mo. 328; Sallee v. St. Louis, 152 Mo. 615; Harman v. St. Louis, 137 Mo. 494; Butz v. Cavanaugh, 137 Mo. 503; Moran v. Pullman Palace Car Co., 134 Mo. 641; Salmon v. Kansas City, 241 Mo. 14; Kiley v. City of Kansas, 87 Mo. 103. (2) Plaintiff was guilty of contributory negligence as a matter of law because he knew that the street was in a defective and dangerous condition, and that the parkway was torn up and construction or repair work was in progress in the street; because he failed to exercise his faculties to discover and avoid obvious dangers; because, by the exercise of ordinary care, he could have discovered the open ditch and the danger of walking in the parkway, and failed to do so and proceeded carelessly and without paying any attention to where he was walking because the danger was open and obvious. Baranovic v. Moreno Co., 342 Mo. 322, 114 S.W.2d 1043; Ryan v. Kansas City, 232 Mo. 471; Waldmann v. Skrainka Const. Co., 289 Mo. 622, 233 S.W. 242; Welch v. McGowan, 262 Mo. 709, 172 S.W. 18; Jackson v. Telephone Co., 281 Mo. 358; Craine v. Metropolitan St. Ry. Co., 246 Mo. 393; Wheat v. St. Louis, 179 Mo. 572; Woodson v. Metropolitan St. Ry. Co., 224 Mo. 685; O'Neill v. St. Louis, 292 Mo. 656; Cohn v. City of Kansas, 108 Mo. 387; Eisele v. Kansas City, 237 S.W. 873; Sloan v. American Press, 327 Mo. 470, 37 S.W.2d 884. Plaintiff's cause of action is bottomed upon the alleged violation of the ordinance in question. Since the city cannot be held liable for damages to plaintiff in a civil suit for failure to enforce its own ordinance, the amended petition states no cause of action and plaintiff is not entitled to recover thereunder. See cases cited under Point (2). (3) Instruction 1 given by the court at the request of plaintiff is erroneous because it tells the jury to find for plaintiff, if it believes and finds that the defendant failed to enforce the ordinance provision in question, requiring certain barricades and red lights at and around obstructions and excavations in the parkway. It is based solely on the theory that the defendant's failure to enforce such ordinance provision made the city liable. No such liability was incurred by the city as shown in Point (1), supra. The city was liable for negligence only and not because of a violation of such ordinance provision. Ryan v. Kansas City, 232 Mo. 471; Mehan v. St. Louis, 217 Mo. 35; Loth v. Columbia Theatre Co., 197 Mo. 328; Sallee v. St. Louis, 152 Mo. 615; Harmon v. St. Louis, 137 Mo. 494; Butz v. Cavanaugh, 137 Mo. 503; Moran v. Pullman Palace Car Co., 134 Mo. 641. Instruction 3 given by the court at the request of the plaintiff is erroneous because it tells the jury that the plaintiff had a right to assume that he could use with safety the driveway and parkway. Plaintiff had no right to so assume, because he knew of the defective condition of the parkway; also that the parkway was torn up and construction and repair work was in progress in the parking and the street. It is the settled law in Missouri, that a traveler on a public street may ordinarily assume that the street is reasonably safe for public travel; however, this rule has no application where the traveler knows that the street is in a dangerous condition or that construction or repair work is in progress on the street. Baranovic v. Moreno Co., 342 Mo. 322, 114 S.W.2d 1043; Scheffer v. Schmidt, 324 Mo. 1042, 26 S.W.2d 592; Waldmann v. Skrainka, 289 Mo. 622, 233 S.W. 242; Welch v. McGowan, 262 Mo. 709, 172 S.W. 18; Rohmann v. City of Richmond Heights, 135 S.W.2d 378; Phelan v. Paving Co., 227 Mo. 666; O'Neill v. St. Louis, 292 Mo. 656, 239 S.W. 94; Hamra v. Helm, 281 S.W. 103; Eisele v. Kansas City, 237 S.W. 873; Jackson v. Telephone Co., 281 Mo. 358, 219 S.W. 655. (5) It was error to refuse Instruction A, offered by defendant because it correctly states the law. Cordray v. City of Brookfield, 334 Mo. 249, 65 S.W.2d 938. (6) The court erred in refusing instruction marked C, asked by defendant. It submitted the facts pleaded in the answer as constituting plaintiff's negligence and which there was substantial evidence to support. King v. Rieth, 341 Mo. 467, 108 S.W.2d 1; Clason v. Lenz, 332 Mo. 1113, 61 S.W.2d 727; Schide v. Gottschick, 329 Mo. 64, 43 S.W.2d 777; Hanke v. St. Louis, 272 S.W. 933.

C. M. Hulen for respondent.

(1) The court did not err in admitting in evidence the city ordinance requiring that excavations and obstructions be closed by barriers, as mentioned therein. (a) The violation of such a city ordinance was negligence per se. Myers v. Kansas City, 108 Mo. 480; Perrigo v. St. Louis, 185 Mo. 274; Butz v. Cavanaugh, 137 Mo. 503; Borack v. Mosler Safe Co., 231 S.W. 623; Miles v. Central Coal & Coke Co., 157 S.W. 867; Judd v. Railroad, 23 Mo.App. 56; Murray v. Railroad, 101 Mo. 236; Todd v. Railroad, 37 S.W.2d 557. (b) The petition is based upon the violation of an ordinance as negligence, and also upon common law negligence. Robison v. Kansas City, 181 S.W. 1004; Salmon v. Kansas City, 145 S.W. 16; Judd v. Railroad, 23 Mo.App. 56; Wendler v. People's House Furnishing Co., 165 Mo. 527; Hirst v. Ringen Real Estate Co., 169 Mo. 194; McKee v. Peters, 142 Mo.App. 286; Christman v. Meierhoffer, 116 Mo.App. 46; Shafir v. Carroll, 274 S.W. 755; Lindman v. Kansas City, 271 S.W. 516. The court did not err in giving Instruction 1. (a) See cases cited under Point (1), subsections (a) and (b). (b) The city acted in its corporate capacity and not in its governmental capacity; therefore, it is subject to the same rules of negligence as any individual or corporation. Donohoe v. Kansas City, 136 Mo. 657; Williamson v. Mullins, 180 S.W. 395; Healy v. Kansas City, 211 S.W. 59; Reed v. City of Mexico, 101 Mo. 155. (3) The court did not err in overruling defendant's demurrer at the close of the case. (a) There was abundant evidence of defendant's negligence. Williamson v. Mullins, 180 S.W. 395; Burton v. Kansas City, 168 S.W. 889. (b) The question of plaintiff's contributory negligence was a question for the jury. Williamson v. Mullins, 180 S.W. 395; Smith v. St. Joseph, 45 Mo. 449; Barr v. Railroad, 37 S.W.2d 927; Kelly v. Walsh, 164 S.W. 135. (4) Instruction 3 properly declared the law under the evidence. Elliott v. Kansas City, 198 Mo. 593; Smith v. St. Joseph, 45 Mo. 449; Perrette v. Kansas City, 162 Mo. 238; Heberling v. City of Warrensburg, 204 Mo. 615; Holloway v. Kansas City, 184 Mo. 19; Cassaday v. Kansas City, 119 Mo.App. 116; Bentley v. Hat Co., 144 Mo.App. 612. (5) The court did not err in refusing Instructions A and C, offered by defendant and refused by the court, for the reason that said instructions were covered by other instructions given by the court.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

As a W.P.A. sponsored project the City of Moberly resurfaced and improved certain streets. In improving the drainage of a viaduct and relaying the sewer line a ditch was dug in the parkway between the sidewalk and curb line of Rollins Street. On May 13, 1941, W. H. Bean fell in this ditch and for his injuries recovered a judgment of $ 7,666.00 against the City of Moberly. On this appeal the city tacitly concedes that Bean's evidence justified a finding that the city had breached its common law duty to exercise due care in the maintenance of its ways and was, therefore, negligent, but argues that its demurrers should have been sustained because the evidence also demonstrated that he was guilty of contributory negligence as a matter of law.

The ditch intersected the driveway to the Tedford home and it was at this point Bean fell. There were barricades or piles of dirt both north and south of the ditch. There were "bomb lights" at the edge of the street where dirt was piled and a light on either side of the entrance to the drive, but at the east end of the ditch, where it intersected the driveway, there were no lights or barricades according to the jury's finding. Bean and his wife were visiting his brother-in-law. The driveway was the vehicular entrance to his home. When the Beans first called they parked their car in the driveway back of the brother-in-law's car. Later Bean backed his car out of the drive while his brother-in-law drove his car out. They both went to the business district on an errand. When they came back Ray stopped his car in the drive and let Bean out. He then observed that his car obstructed the sidewalk and backed it up so that it occupied the space in the driveway next to the parkway and alongside the east end of the unprotected and unguarded ditch. About 8:45 o'clock the Rays and Beans started to the second picture show. The men walked ahead to the Ray car Hubert Ray...