DePung v. City of St. Louis

• Decision Date: 20 February 1968
• Docket Number: No. 32858,32858
• Citation: 425 S.W.2d 509
• Parties: Lorraine A. DePUNG, Plaintiff-Respondent, v. CITY OF ST. LOUIS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 509

425 S.W.2d 509

Lorraine A. DePUNG, Plaintiff-Respondent, v. CITY OF ST. LOUIS, Defendant-Appellant.

No. 32858.

St. Louis Court of Appeals, Missouri.

Feb. 20, 1968.

Thomas F. McGuire, City Counselor, John J. Fitzgibbon, Assoc. City Counselor, St. Louis, for defendant-appellant.

Robert A. Cedarburg, Derrick & Holderle and Tyree C. Derrick, St. Louis, for plaintiff-respondent.

CLEMENS, Commissioner.

The plaintiff motorist, Mrs. Lorraine A. DePung, was injured when she drove off the street and into a tree while trying to dodge a partly lighted barricade and excavation in the defendant City's street. She got a $2,000 verdict and judgment. The City has appealed, challenging the sufficiency of plaintiff's evidence to show that the City had constructive knowledge of the dangerous condition long enough to impute negligence to the City in failing to remedy the condition.

The parties are in accord about the underlying principles of the City's liability. Neither questions the principle that a city is not an insurer for the safety of persons using its streets and is liable only for failing to use ordinary care to keep streets in a reasonably safe condition. (Keen v. City of St. Louis, Mo.App., 189 S.W.2d 139(5).) Nor do the parties question the principle tht it was incumbent on plaintiff to prove the dangerous condition existed long enough to warrant an inference that the City should have known of it and thereafter had time, in the exercise of ordinary care, to remedy it. (Glenn v. City of Springfiled--Mo., 254 S.W.2d 632(4).) As will be seen, plaintiff assumed that burden by her verdict-directing instruction. The parties differ, however, about the amount of time that was in fact available to the City before the accident to discover and remedy the dangerous condition. We conclude that the time available was approximately half an hour and we recite the verdict-consistent evidence on which we base that conclusion.

Bates Street runs east from Grand Avenue Through a residential neighborhood. It is 31 feet wide, straight, level and flanked by trees and dim street lights. Several months before Mrs. DePung's accident the City had repaved Bates Street with a layer of asphalt. The Metropolitan Sewer District (MSD) maintained a sewer under the center of the street, and manholes gave access to the sewer. In repaving Bates the City had intentionally covered these manholes and then spotted each one for MSD. In due time MSD uncovered the manholes and raised them to the new grade by pouring fresh concrete around each one. Then the manholes were barricaded and lighted by MSD for several days while the concrete hardened. City street supervisors inspected MSD's work from time to time, and the City was to repave around the manholes when MSD was finished with its work. Mrs. DePung was injured during MSD's phase of the work. So much for the general conditions.

Mrs. DePung gave a precise account of the accident. At 10:30 p.m. she was driving east on the south side of Bates Street. This was the first time she had driven on Bates. Parked cars lined both sides of the street. Mrs. DePung's headlights lit the street for about 100 feet ahead. Two hundred feet ahead of her, Mrs. DePung saw a flickering red light on the north side of Bates (on her left-hand side) and thought someone was working on that side of the street. When 20 to 30 feet away, Mrs. DePung saw the excavation and barricade in the center of Bates. Trying to avoid this, she braked and swerved to her right. Although she missed the barricade, her car ran over the curb and into a tree on the sough side of the street. The barricade straddled the manhole, in the center of the street. It was 3 feet high and 7 feet long, made of unpainted, weathered wood. Its dull color blended with the gray-black asphalt pavement and a pile of dirt lying beyond the barricade. A red lantern hung from each end of the barricade. The lantern at the north end was dim and flickering; the lantern at the south end (Mrs. DePung's right-hand side of the street) was unlit.

The evidence on the time element: Two residents on Bates Street testified for plaintiff. Each confirmed her statement that only one lantern was burning on the barricade at the time of the accident, but they differed about which one was lighted. Mrs. Virginia Humann had looked out to the street 'half an hour to an hour, perhaps' before the accident. She saw only one lighted lantern on the barricade; she was positive of this but vague about the location of the barricade with reference to the center of Bates Street. At that time Mrs. Humann thought the one lighted lantern was on the south side of the street. (On cross-examination she stated definitely that the lighted lantern was on the south side of the street.) The other resident, Mrs. Mabel Buchrucker, said that MSD workmen had worked at each manhole two or three days; that they put up barricades and lanterns at night; that on the night before the accident four lighted lanterns hung from the barricade. On the night of the accident Mrs. Buchrucker was listening to a news broadcast between 10 and 10:30 o'clock. Some time during the broadcast she heard motorists on Bates Street 'putting on their brakes as though they were making quick stops.' Curious, she went to the window, looked outside and saw that the barricade had only one lighted lantern--on the north side (Mrs. DePung's version). Mrs. Buchrucker started for her phone to report the condition to the police, and on the way she heard Mrs. DePung's car hit the tree. Both Mrs. Buchrucker and Mrs. DePung's husband (who came to the scene a few minutes later) said a policeman lighted the south lantern after the collision.

The sufficiency of this evidence must be measured according to plaintiff's submission. (Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91(4, 5).) Here is her verdict-directing instruction:

'Your verdict must be for the plaintiff if you believe:

'First, defendant permitted to be maintained a barricade on Bates Avenue at night without sufficient lights thereon to warn motorists of its existence, and

'Second, persons driving along said street exercising the highest degree of care were exposed to danger, and

'Third, defendant knew or by using ordinary care should have known of said danger, and

'Fourth, defendant failed to use ordinary care to remedy it, and

'Fifth, as a direct result of such failure, plaintiff was injured, unless you believe plaintiff is not entitled to recover by reason of Instruction No. 4.'

The City challenges the sufficiency of the evidence to meet the third paragraph: the City's constructive knowledge of the dangerous condition. The plaintiff and the City give opposite interpretations of the plaintiff's evidence. Plaintiff contends there was no evidence that the south end of the barricade was ever lighted. The City, relying on Mrs. Humann's statement that it was the south lantern that was burning before the accident, contends there was no evidence that the south light was out until the moment Mrs. DePung drove up. Plaintiff and defendant cite cases based on these extreme versions. We believe the plaintiff's evidence warrants neither extreme view but lies between.

We conclude that the substantial evidence is that the lanternon the south side of the barricade was unlit for not more than half an hour before the accident. This time is calculated on the testimony of two witnesses: Mrs. Humann said that 'half an hour to an hour, perhaps' before the accident only one lantern was burning, but she said it...