Burow v. St. Louis Public Service Co., 33527.

• Decision Date: 23 April 1936
• Docket Number: No. 33527.,No. 33528.,33527.,33528.
• Parties: BUROW v. ST. LOUIS PUBLIC SERVICE CO. et al. (two cases).
• Court: Missouri Supreme Court

100 S.W.2d 269

BUROW v. ST. LOUIS PUBLIC SERVICE CO. et al. (two cases).

No. 33527.

No. 33528.

Supreme Court of Missouri, Division No. 1.

April 23, 1936.

Rehearing Denied November 12, 1936.

Motion to Transfer to Court in Banc Denied December 14, 1936.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by F. A. Burow against the St. Louis Public Service Company and the Red Line Service, Incorporated. Judgment for plaintiff, and the defendants separately appeal.

Judgment reversed as to the St. Louis Public Service Company and judgment against the Red Line Service, Incorporated, reversed and remanded.

T. E. Francis, B. G. Carpenter, and Wm. H. Allen, all of St. Louis, for appellant St. Louis Public Service Co.

Moser, Marsalek & Dearing, of St. Louis, for appellant Red Line Service, Inc.

Everett Hullverson, of St. Louis, for respondent.

GANTT, Presiding Judge.

Action for personal injuries. The automobile in which plaintiff and wife were riding collided at 3:30 p. m. on October 13, 1931, with a motorbus owned by defendant Red Line Service, Inc. The collision occurred five miles west of St. Louis and on a highway known as the St. Charles road. Plaintiff and wife were injured. The wife recovered from the Red Line Service, Inc. In that case there was a verdict for the Public Service Company. We refer to the opinion in that case for a complete statement of the facts. (Mo.App.) 79 S.W.(2d) 478. In this case the plaintiff also sued for loss of the services of his wife and for damages to the automobile. Judgment for $15,000.

The petition alleged that the Public Service Company negligently constructed and maintained its track rails above the surface of the highway and thereby caused the collision. The answer was a general denial.

I. It is contended that the court should have directed a verdict for the Public Service Company at the close of all the evidence. The pertinent facts follow:

In the spring of 1930 there was a concrete slab 20 feet wide in the center of said highway. On each side of the slab and in the highway was the Public Service Company's tracks. The highway was a part of the state highway system. At said time the State Highway Commission notified the Public Service Company that it had decided to widen the concrete slab 10 feet on each side thereof. It suggested that the company should remove the ballast from under the tracks, adjust the tracks to the grade fixed by the commission, remove rotten ties, replace them with sound ties, and place concrete under, between and to the top of the ties, which concrete would be furnished by the commission. The Public Service Company agreed in writing to do that part of the work. It did the work under the supervision of the Highway Commission. The commission did the balance of the work. In placing the top surface of the highway between the rails, the Highway Commission's contractor sloped the concrete upward fom the bottom of the rails to the center line between the rails. Thus the tops of the rails were three inches above the surface of the highway next to and between the rails. The widening of the highway affords two lanes for eastbound traffic and two lanes for westbound traffic. Plaintiff was driving the automobile east in the south center lane. Its right wheels were between the rails of the south track. He attempted to pass an automobile. In doing so the right rear wheel of plaintiff's automobile caught on the north rail of the track, which caused it to skid on the wet pavement to the "extreme north side" of the highway where it collided with the west bound motorbus of defendant Red Line Service, Inc.

Plaintiff argues that the pavement was widened under a mutual contract between the State Highway Commission and the St. Louis Public Service Company, and for that reason the company is liable to plaintiff for said injuries.

Under the common law it is the duty of a street railway company to so construct and maintain its tracks in city streets that the public may use them with reasonable safety. Usually this duty is expressly provided for by contract, franchise, ordinance, or statute. Furthermore, there are cases holding that a company cannot avoid liability upon the ground that the track was constructed and maintained under the supervision of the city. In those cases it was ruled that the city could not bind the public by requiring a construction and maintenance which rendered the track unnecessarily dangerous. Groves v. Louisville Ry. Co., 109 Ky. 76, 58 S.W. 508, 52 L.R.A. 448; Slater v. North Jersey St. R. Co., 75 N.J.Law, 890, 69 A. 163, 15 L.R.A.(N.S.) 840; Brobston v. Burgess and Town Council, 290 Pa. 331, 138 A. 849, 54 A.L.R. 1285, 1291. But the city controls the streets in its corporate capacity. On the other hand, the State Highway Commission controls the state highways as a governmental agency. Its control is fixed by the Constitution as follows: "All the highways and bridges to be constructed and improved with the funds herein provided, shall be constructed, improved and maintained under the direction and supervision of the State Highway Commission, which shall determine the width of right-of-way and surface, and the type and character of construction, improvement, and maintenance." Section 44a, art. 4, const.

In the face of this constitutional provision the Public Service Company could not interfere with either the plan or construction in question. If so, the company was under no duty to the public with reference to the widening of the pavement. Absent said duty, it could not be liable to plaintiff for injuries. The contract between the State Highway Commission and the Public Service Company only fixed the work to be done by the company under the supervision of the commission. Plaintiff does not complain of the work...