Blackburn v. St. Louis, 35465.

• Decision Date: 19 November 1938
• Docket Number: No. 35465.,35465.
• Citation: 121 S.W.2d 727
• Parties: ANNABELLE BLACKBURN v. CITY OF ST. LOUIS, Appellant, and GEORGE ROGUL, Defendant.
• Court: Missouri Supreme Court

121 S.W.2d 727

ANNABELLE BLACKBURN v. CITY OF ST. LOUIS, Appellant, and GEORGE ROGUL, Defendant.

No. 35465.

Supreme Court of Missouri.

Division One, November 19, 1938.

Appeal from Circuit Court of City of St. Louis. — Hon. Charles B. Williams, Judge.

REVERSED.

E.H. Wayman and Louis A. McKeown for appellant.

(1) The regulation of traffic is a governmental function, and a city is not liable for negligence in the performance of its governmental duty to regulate traffic by the location and maintenance of traffic buttons or markers. Prewitt v. St. Joseph, 70 S.W. (2d) 916, 334 Mo. 1228; Seibert v. Mo. Pac. Ry., 188 Mo. 657; Auslander v. St. Louis, 56 S.W. (2d) 778, 332 Mo. 145; Carruthers v. St. Louis, 341 Mo. 1073; Lowery v. Kansas City, 85 S.W. (2d) 111, 337 Mo. 47; District of Columbia v. Manning, 18 Fed. (2d) 806; Jacksonville v. Bell, 112 So. 885; City of Cleveland v. Gustafson, 125 Ohio St. 607; City of Denver v. Forster, 1 Pac. (2d) 923; Parsons v. New York, 273 N.Y. 547. Because the safety zone was installed by the city as a part of a general plan for public safety and traffic regulation, and the city was thus acting in a governmental capacity, its maintenance is therefore also a continuance of such governmental function, and the city is not liable for negligence in maintenance. Prewitt v. St. Joseph, 70 S.W. (2d) 916, 334 Mo. 1228; Auslander v. St. Louis, 56 S.W. (2d) 778, 332 Mo. 145; Carruthers v. St. Louis, 341 Mo. 1073. (2) Instruction A correctly states the law. A safety zone is in no sense a private use of the street, but is clearly a police protection against injuries to persons passing along the street, and such zones therefore cannot in any proper sense be said to be a nuisance on the street. Seibert v. Mo. Pac. Ry., 188 Mo. 657; Prewitt v. St. Joseph, 70 S.W. (2d) 916; Atchison v. St. Joseph, 133 Mo. App. 563; Julia Bldg. Assn. v. Bell Tel. Co., 88 Mo. 258; Gay v. Telegraph Co., 12 Mo. App. 485; Gates v. Bridge & Terminal Co., 111 Mo. 28; 3 Dillon Mun. Corps. (5 Ed.), sec. 1168, p. 1856. (3) The verdict and judgment, even after remittitur, are grossly excessive. Stalz v. Transit Co., 188 Mo. 581; Taylor v. Mo. Pac. Ry., 279 S.W. 121, 311 Mo. 604; Clifton v. Railroad Co., 232 Mo. 710, 135 S.W. 40; Johnson v. Railroad Co., 64 S.W. (2d) 674, 334 Mo. 22; Busch v. L. & N. Railroad Co., 17 S.W. (2d) 337, 322 Mo. 469; Cole v. Railroad Co., 61 S.W. (2d) 344, 332 Mo. 999; Mann v. Ry. Co., 72 S.W. (2d) 977; Evans v. Terminal, 69 S.W. (2d) 929; Reed v. Terminal, 62 S.W. (2d) 747.

Eagleton, Waechter, Yost, Elam & Clark and Frank E. Atwood for respondent.

(1) The plaintiff made a submissible case for the jury respecting appellant's liability under the pleadings and the evidence, and the trial court did not err in refusing to give appellant's offered instruction in the nature of a demurrer to the evidence because: (a) The duty of the appellant city to exercise reasonable care to maintain its streets in a reasonably safe condition for use and travel by ordinary modes, whether by day or by night, was an absolute, continuous, nondelegable duty cast upon the city in the exercise of its ministerial, proprietary or corporate function of construction, repair and maintenance of its public streets. Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001; Metz v. Kansas City, 229 Mo. App. 402, 81 S.W. (2d) 462; Benton v. St. Louis, 217 Mo. 687, 118 S.W. 418; State ex rel. Springfield v. Cox, 327 Mo. 152, 36 S.W. (2d) 102; Nimmo v. Perkinson Bros. Const. Co., 85 S.W. (2d) 98. (b) The predicate of liability for the failure of the city to perform that duty rests upon the failure of the city to remedy, remove, or warn travelers of the presence of, any dangerous defect or obstruction in the street, after having notice (actual or constructive) of the dangerous defect or obstruction, and the producing cause of such dangerous defect or obstruction is wholly immaterial. Authorities Point 1(a); Badgley v. St. Louis, 149 Mo. 122, 50 S.W. 817; Johnston v. Kansas City, 211 Mo. App. 262, 243 S.W. 265; 43 C.J., p. 992, sec. 1779. (c) Notwithstanding that, in placing the "traffic buttons" in the street, the appellant city was performing a governmental function relating to the control of traffic and as a part of a general plan for public safety, the appellant was not thereby relieved of its above-mentioned absolute, continuous and nondelegable duty to exercise ordinary care to keep the streets in a reasonably safe condition for use and travel. Sprague v. St. Louis, 251 Mo. 624, 158 S.W. 16; Carrington v. St. Louis, 89 Mo. 208, 1 S.W. 240; Burnes v. St. Joseph, 91 Mo. App. 489; 43 C.J., pp. 1013-1014, sec. 1793; 39 A.L.R. 781; 12 A.L.R. 333; Vicksburg v. Harralson, 136 Miss. 872, 101 So. 713; Titus v. Bloomfield, 80 Ind. App. 483, 141 N.E. 360; Town of Hobart v. Casbon, 81 Ind. App. 24, 142 N.E. 138; Wells v. Kenilworth, 228 Ill. App. 332; Riley v. Ronceverte, 108 W. Va. 222, 151 S.E. 174; Fitzgerald v. Village of Bovey, 174 Minn. 450, 219 N.W. 774; Federman v. Stamford, 118 Conn. 427, 172 Atl. 853; Sheets v. McCook, 95 Neb. 139, 145 N.W. 252; Cone v. Detroit, 191 Mich. 198, 157 N.W. 417; Tripp v. Norfolk, 129 Va. 566, 106 S.E. 360; Auslander v. St. Louis, 332 Mo. 145, 56 S.W. (2d) 778. (d) The fact that, when the "traffic buttons" were in good and proper condition, they were painted a bright yellow color to distinguish them from the surface of the roadway and contained "frogeye" reflecting devices so as to bring their presence and location to the attention of motorists using the street by day or by night, was both a distinct recognition by appellant city of its duty and the necessity of providing some means of warning motorists of the presence and location of such "traffic buttons" in order that the street be made reasonably safe for travel, and evidence that the failure of appellant city to properly and adequately warn motorists of the presence and location of such buttons constituted negligence on the part of appellant city. Metz v. Kansas City, 229 Mo. App. 402, 81 S.W. (2d) 462; Munden v. Kansas City, 225 Mo. App. 791, 38 S.W. (2d) 540; Bachman v. Quincy & O.K. Ry. Co., 310 Mo. 418, 274 S.W. 764; Ebert v. Kasper Co., 71 S.W. (2d) 859.

HYDE, C.

This is an action for damages for personal injuries. Plaintiff had a verdict for $58,000 against both defendants. The trial court ordered a remittitur of $28,000 which was made. Judgment was entered for plaintiff for $30,000 and only the city has appealed therefrom.

Plaintiff was struck and injured by an automobile (east-bound) driven by defendant Rogul while she was standing on the sidewalk (about 7:00 P.M., in February, 1934) waiting for an east-bound street car, near the southwest corner of the intersection of Easton and Euclid avenues in St. Louis. The direction of Easton Avenue is east and west. Its pavement (brick) was 50 feet wide, with two street car tracks in the center, and its south sidewalk was 15 feet wide. Plaintiff was standing at the back (south) side of the sidewalk next to the wall of a building. The surface of the sidewalk was about eight inches higher than the surface of the roadway. There was a reflector type stop sign in the southwest corner of the intersection, for the purpose of requiring east-bound traffic on Easton Avenue to stop before entering Euclid Avenue. This sign was placed near the sidewalk curb and was a short distance east of the place where plaintiff was injured. There was one 400 candle power light at the southwest corner of the intersection; another at the northeast corner and a third 120 feet west thereof on the north side of the street.

South of the south street car track in Easton Avenue, and west of Euclid Avenue, the appellant city had constructed a safety zone, by fastening to the surface of the pavement six convex metal markers, known as "traffic buttons," and marking the limits of the safety zone by a yellow line painted on the surface of the pavement between the outer (nearest the sidewalk) or southernmost, of these "traffic buttons." The "traffic button" fartherest west was located with its northern edge fifteen inches south of the south rail of the street car track and eighty-six feet west of the intersection of Easton and Euclid Avenues. Nineteen feet east of this westernmost button, there were three more buttons, extending in a row from north to south at right angles to the yellow line. The north edge of the northern-most button in this row was twenty-eight inches south of the south rail of the street car track and the other two buttons were immediately adjacent thereto to the south with their edges in contact. The center of the southernmost button in the row was five feet two inches south of the south rail of the street car track. The remaining two buttons of the safety zone were located with their centers five feet two inches south of the south rail of the street car track and were respectively, twenty-seven and fifty-four feet east of the row of three buttons. This type of button had been in use in St. Louis since 1926. The yellow line painted on the pavement of the roadway, joining the buttons nearest the sidewalk designated the south side of the safety zone, which was five feet two inches wide until it reached a point approximately 67 feet west of the intersection. The yellow line then ran diagonally toward the car track where the westernmost button was placed near the track. These "traffic buttons" were ellipsoidal metal objects with a round, flat base thirteen inches in diameter, their upper surfaces being corrugated and about four inches high in the center. Each of these "buttons" had a circular opening on one side in which there was an optical device, referred to as the "frog eye," consisting of an arrangement of lenses and mirrors designed to reflect back to the driver of an approaching vehicle the beams from his headlights, and thereby serve as a warning signal to the drivers, of vehicles approaching at night, of the...