Cunningham v. City of Springfield

• Decision Date: 29 July 1930
• Citation: 31 S.W.2d 123,226 Mo.App. 23
• Parties: MARY E. CUNNINGHAM, RESPONDENT, v. CITY OF SPRINGFIELD, A MUNICIPAL CORPORATION, AND SPRINGFIELD GAS & ELECTRIC COMPANY, A CORPORATION, APPELLANTS
• Court: Missouri Court of Appeals

31 S.W.2d 123

226 Mo.App. 23

MARY E. CUNNINGHAM, RESPONDENT, v. CITY OF SPRINGFIELD, A MUNICIPAL CORPORATION, AND SPRINGFIELD GAS & ELECTRIC COMPANY, A CORPORATION, APPELLANTS

Court of Appeals of Missouri, Springfield

July 29, 1930

Appeal from Circuit Court of Greene County.--Hon. Warren L. White Judge.

AFFIRMED.

Judgment affirmed.

E. A Barbour, Jr., for appellant, City of Springfield.

Frank B. Williams and John L. Graves for appellant, Springfield Gas & Electric Company.

Wear & Benton and Arch A. Johnson for respondent.

COX, P J. Bailey and Smith, JJ., concur.

OPINION

COX, P. J.--

Action for damages for personal injury. Plaintiff recovered and defendants appealed.

The St. Louis-San Francisco Railway Company was also a party defendant but by peremptory instruction to the jury, a verdict was returned in its favor, hence it is out of the case.

The plaintiff rode as a guest in the automobile of her husband who drove to the depot of the railroad company on a dark, rainy night to mail a letter. He drove off the west side of the street on to a paved parking space on the south side of the depot and parked his car there while he went through the depot to the other side and deposited his letter in a mail box. He then returned to the car and drove around some other parked automobiles and then turned to drive back east into the street in order to return home. After he passed the east line of the railroad property a little more than eight feet his car collided with an electric light pole situated a few inches west of the west line of the paved part of the street proper and inside of the east line of the sidewalk and as a result of that collision his wife, this plaintiff, was injured.

The evidence tends to show that the railroad owns an area of ground on the south side of this depot and abutting on the west side of Main Avenue in the City of Springfield, a distance of about one hundred seventeen feet. Main Avenue was widened and paved by the city from College Street running north past the area of ground above referred to as belonging to the railroad. From College Street north an integral curb was built on the west side of the paved part of Main Avenue until it reached the south line of the railroad property above described. At that point the curb was discontinued and a concrete sidewalk nine and one-half feet wide connecting with the street paving on the west side thereof and extending west to the property line of the railroad and running north the entire length of the railroad property was constructed by the railroad. There was no curb constructed at the curb line along the railroad property but instead there was a slight depression there for drainage purposes. Along the entire length of the railroad property there was no curb on the west side of Main Avenue but the concrete street paving and the concrete sidewalk were connected. The strip of ground owned by the railroad on the west side of Main Avenue and south of its depot had been improved by the railroad as follows: Eighty-four feet on the north side of this strip abutting the west side of Main Avenue had been paved from said street back west a considerable distance. The remainder of the strip abutting the west side of Main Avenue was covered with chats and its surface was level with the paved portion of the strip and also level with the west line of the concrete sidewalk. The light pole with which the automobile in which plaintiff was riding collided was located about three inches south of the south line of the paved portion of the railroad property and in the sidewalk portion of the street about seven or eight inches west of the west line of the street paving proper of Main Avenue. In passing from Main Avenue into the area of ground owned by the railroad and in coming back from that area to the street persons in automobiles drove on both sides of this light pole.

The petition alleged that this light pole was negligently erected and maintained by defendants in a public driveway without being fenced, guarded or marked in any way so as to apprise persons using said driveway of its presence therein.

Plaintiff testified that she was keeping a lookout as best she could but in the darkness and rain she could not distinguish through the windshield objects in front of the car and she did not see the light pole until after the car struck it. That the car was being driven slowly by her husband at the time. Other witnesses also testified that the night was very dark and in the rain and darkness the pole could not be distinguished by a person coming toward the street from the railroad property. There was a street light on a bracket on the east side of this pole about eighteen feet above the ground but it did not throw light west of the pole to any considerable extent. The pole was black and that fact coupled with the fact that it was raining hard and the night was very dark made it very hard to see the pole when approaching it from the west. Neither plaintiff nor her husband saw the pole as they drove from the street on to the railroad property and did not know it was there until the car struck it. One witness who knew the pole was there was driving out from the depot about an hour after this accident and was looking for the pole in order to avoid striking it and could not see it and after putting his foot on the brake, he, as he stopped, as he described it crept into the pole. The evidence of this witness and another witness who was there about an hour before this accident, went in over the objection of defendants.

We think the foregoing a sufficient outline of the material facts proven that are favorable to plaintiff. A demurrer to the evidence was filed and overruled and that action of the court is assigned as error. It is practically conceded by respondent that the city and the lighting company had the right to place the light pole where it was placed but insist that when so placed it was the duty of defendants...