Cregger v. City of St. Charles

• Decision Date: 04 December 1928
• Docket Number: No. 20491.,20491.
• Citation: 11 S.W.2d 750
• Court: Missouri Court of Appeals
• Parties: BURNICE CREGGER, RESPONDENT, v. CITY OF ST. CHARLES, APPELLANT.<SMALL><SUP>*</SUP></SMALL>

11 S.W.2d 750

BURNICE CREGGER, RESPONDENT, v. CITY OF ST. CHARLES, APPELLANT.^*

No. 20491.

St. Louis Court of Appeals. Missouri.

Opinion Filed December 4, 1928.

Appeal from the Circuit Court of Warren County. — Hon. Emil Roehrig, Judge.

AFFIRMED.

William F. Achelpohl, Theodore C. Bruere and Hensley, Allen & Marsalek for appellant.

(1) The demurrer to the evidence should have been sustained. (a) The burden was upon plaintiff to prove that her husband's death was caused by the alleged negligence of the defendant in permitting the hole or depression, mentioned in the evidence, to remain in the street; i.e., to establish that defendant's alleged negligence was the proximate cause of the death of the deceased. None of the facts and circumstances shown in evidence tend to support this theory as a possible explanation of the accident, but on the contrary, the evidence demonstrates conclusively that the turning of the truck around the corner was the cause of deceased's fall and death. There was a complete failure of proof on this vital issue; and consequently the trial court should have directed a verdict for the defendant. Denny v. City of Puxico, 4 S.W. (2d) 475 (Mo. App.); Warner v. Railway Co., 178 Mo. 125; State ex rel. Boeving v. Cox, 310 Mo. 367, l.c. 375; Dyer v. W.M. Sutherland Bldg. & Contracting Co., 258 S.W. 48 (Mo. App.); Weber v. Valier & Spies Milling Co., 242 S.W. 983 (Mo. App.); Waldmann v. Skrainka Construction Co., 211 Mo. App. 576; Courter v. Mercantile Co., 266 S.W. 340 (Mo. App); Byerly v. Light, Power & Ice Co., 131 Mo. App. 593; Harper v. Terminal Co., 187 Mo. 575; Kane v. Mo. Pac. Ry. Co., 251 Mo. 13; Bennett v. Equipment Co., 214 S.W. 244; Van Bibber v. Swift & Co., 286 Mo. 317; Battles v. United Railways Co., 178 Mo. App. 596; Southworth v. Shay, 131 Ala. 419; Eigenbrodt v. City of Williamsport, 44 Pa. Super. Ct. 437; Stern v. City of Reading, 255 Pa. 96. (b) Even if it could be said that the evidence had some tendency to show that the jarring of the truck, as the right rear wheel thereof passed through the hole or depression, could have caused Cregger's fall (which we by no means concede), still the plaintiff is not entitled to recover, because plaintiff's evidence also shows another cause, viz.: the turning of the truck around the corner at the rate of twelve to fifteen miles per hour, to which the accident is attributable with a far greater degree of probability. It is well settled that if the evidence shows that the injury may have resulted from one of two causes, for one of which, and not the other, the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result; but if the evidence leaves this matter to conjecture and speculation, as it does in this case — if there may be said to be any evidence that the presence of the hole or depression caused the deceased's fall — plaintiff must fail in the action. Warner v. Railway, 178 Mo. 125; Weber v. Valier & Spies Milling Co., 242 S.W. 985; Waldmann v. Skrainka Construction Co., 211 Mo. App. 576; Dyer v. Building & Contracting Co., 258 S.W. 48; Coin v. Lounge Co., 222 Mo. 488; Purcell v. Tennet Shoe Co., 187 Mo. 276; Swearingen v. Railway Co., 221 Mo. 644; Garonson v. Mfg. Co., 186 Mo. 300; Strother v. Ry. Co., 188 S.W. 702; Fuchs v. City of St. Louis, 133 Mo. 168; Fink v. Railway Co., 161 Mo. App. 314; Smart v. Kansas City, 91 Mo. App. 586; Patton v. Rys. Co., 179 U.S. 659, 45 L. Ed. 361. (c) Again, under the meager evidence in this case, the conclusion that the deceased was thrown from the truck in question by reason of the right rear wheel thereof striking or running into the hole or depression mentioned can be arrived at only by piling inference upon inference, contrary to the rule of decision established by a long line of cases in this State. Hamilton v. Railroad, 250 Mo. 720; Whitesides v. Railroad, 186 Mo. App. 608; Newell v. Dickinson, 207 Mo. App. 380; Weber v. Valier & Spies Milling Co., 242 S.W. 983; Bibb v. Grady, 231 S.W. 1022; Cardinale v. Kemp, 274 S.W. 437; Tillotson v. Travelers Insurance Co., 304 Mo. 487; Menteer v. Scalzo Fruit Co., 240 Mo. 177; Wright v. Order of Commercial Travelers, 188 Mo. App. 457; Collin v. Star Paper Mill Co., 143 Mo. App. 333; State ex rel. Public Utilities Co. v. Cox, 298 Mo. 427. (2) Reversible error was committed in giving plaintiff's instruction No. 1, in that the instruction, purporting to cover the case and directing a verdict, failed to require the jury to find that the defendant had breached its duty to exercise ordinary care to keep this street in reasonably safe condition for travel. Francis v. City of West Plains, 203 Mo. App. 249; Albritton v. Kansas City, 192 Mo. App. 574; Reed v. City of St. Joseph, 266 S.W. 330; Cooper v. City of Caruthersville, 264 S.W. 46; Hall v. Coke & Coal Co., 260 Mo. 351.

B.H. Dyer, Ww. F. Bloebaum, Alvin H. Juergensmeyer and Hostetter & Haley for respondent.

BENNICK, C.

This is an action brought by the widow for the wrongful death of her husband. The verdict of the jury was for plaintiff, in the sum of $3500; and, from the judgment rendered, defendant has duly appealed.

In her petition, plaintiff alleged the existence of a much traveled street in defendant city, known as Kingshighway; that it was the duty of defendant to keep the same in repair, and free from dangerous holes and defects; that, on December 12, 1925, the date of decedent's death, and for a long time prior thereto, there was a hole in Kingshighway near its intersection with Sibley street; that, on account of said hole, the condition of Kingshighway was dangerous with respect to persons traveling thereon and desirous of turning into Sibley street; that, on the day in question, decedent, at the invitation of one Summers, was riding behind the cab of a truck, operated by Summers, southwardly on Kingshighway; that Summers endeavored to turn to the right into Sibley street; that one of the wheels of the truck dropped into, and passed through, said hole, producing such an unusual jar and jolt of the truck as to throw decedent out of the same on the hard-surfaced street, whereby he was killed; that defendant had actual or constructive knowledge of the existence of the hole, and the danger arising therefrom to persons using the street; and that defendant, with said knowledge, negligently permitted the hole to remain, and failed to repair it, which said negligence directly and proximately caused the death of decedent.

The answer of defendant was a general denial.

While the directions we shall give are not entirely accurate, it tends to an easy understanding of the situation, and does no violence to the rights of either party, to say that Kingshighway runs from north to south, and that Sibley street, extending from west to east, intersects, but does not cross, Kingshighway on the west. At the time of the casualty, Kingshighway was constructed with a rock foundation covered with macadam, and was one of the principally traveled streets of the city. At the intersection of the two streets there was a brick walk, extending across, and within, Sibley street, parallel to the west line of Kingshighway.

A break in the surface of the macadam, following a washout, had caused a hole to form in Kingshighway, the location of which was variously estimated at from six to ten feet east of the west curb of Kingshighway, and from eight to eighteen feet north of the north line of Sibley street. The hole, which was about two feet in length, and the same distance in width, was not abrupt, but sloped down to the center, where its greatest depth, of five or six inches, was to be found. It was shown that the hole had existed in the surface of the street for as much as two months prior to the day in question, and was not repaired by the city until within one or two hours after the body of the decedent was removed.

Shortly before seven o'clock, on the morning of December 12, 1925, one Robert M. Summers was driving southwardly on Kingshighway toward Sibley street in his Ford truck, accompanied by two other men, one of whom was sitting with Summers in the seat, while the other sat in the door of the cab with his feet resting upon the running board. The truck was constructed in the ordinary manner, having a cab in the front, extending three feet, or slightly more, above the floor of the bed, which was five feet in width, and eight feet in length, with sides seventeen inches in height. The rear spring and the tires of the truck were described as solid. Approximately two blocks north of Sibley street, Summers observed decedent, with whom he had been acquainted for seven or eight months, walking southwardly on the sidewalk on the west side of Kingshighway, carrying his dinner pail in his hand; and he invited the latter to ride to work in the truck, as he had also had occasion to do on the previous morning. Decedent, who was about six feet in height, climbed into the bed of the truck, and stood with his left hand on the top of the cab, meanwhile holding his dinner bucket in his right hand, after which he was never again seen alive.

As Summers approached Sibley street, he veered his course slightly to the left towards the center of Kingshighway, to make a right-hand turn, and, just as he did so, his right rear wheel dropped into, and passed through, the hole at a point three or four inches from its edge, producing "quite a little jar," as well as a "considerable jerk" when the wheel left the hole. He made the turn at a speed of twelve or fifteen miles an hour, and continued onward to his destination, when it was found that decedent was missing. Summers and his companions thereupon retraced their course in search of decedent; and, when they arrived at the intersection of Kingshighway and Sibley streets, they saw his body lying in the street, having meanwhile been discovered by one East, a delivery boy, at approximately ten minutes of seven...