Dowell v. City of Hannibal, No. 27025.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: McCullen
• Citation: 200 S.W.2d 546
• Decision Date: 18 March 1947
• Docket Number: No. 27025.
• Parties: DOWELL v. CITY OF HANNIBAL.

200 S.W.2d 546 DOWELL
v.
CITY OF HANNIBAL. No. 27025. St. Louis Court of Appeals. Missouri. March 18, 1947. Transferred to Supreme Court March 18, 1947.

[200 S.W.2d 548]

Appeal from Circuit Court, Monroe County; Roy B. Meriwether, Judge.

"Not to be reported in State Reports."

Death action by Amy Dowell against the City of Hannibal. Judgment for plaintiff, and defendant appeals.

Affirmed, and cause transferred to the Supreme Court for final determination.

Ben Ely, of Hannibal (Fuller, Fuller & Ely, of Hannibal, and Nolen & Nolen, of Paris, of counsel), for appellant.

Rendlen, White & Rendlen, of Hannibal, and W. W. Barnes, of Paris (now deceased), for respondent.

McCULLEN, Judge.

This action was brought by respondent, as plaintiff, against appellant, as defendant, to recover damages for the death of plaintiff's husband, which death plaintiff alleged was caused by defendant's negligence. The suit was originally instituted in the Hannibal Court of Common Pleas but was removed by change of venue to the Circuit Court of Monroe County where it was tried before the court and a jury, resulting in a verdict and judgment for plaintiff and against defendant in the sum of $5000. Defendant duly appealed.

It is conceded that plaintiff's husband, George F. Dowell, died on January 14, 1944, from injuries sustained by him on August 7, 1943, when an automobile which he was driving plunged over a declivity on the east side of Union Street near the "dead end" of Buchanan Street and a short distance south of the intersection of said two streets in the City of Hannibal, Missouri.

Plaintiff bases her right to recover damages from defendant upon the negligent failure of defendant to maintain a barrier along the east side of Union Street, immediately south of the south line of Buchanan Street, to guard against the danger of automobiles operating eastwardly down a steep grade on Buchanan Street going over a declivity immediately adjacent to the east edge of Union Street and south of a barrier which defendant maintained on Union Street across the "dead end" of Buchanan Street.

The record shows that Union Street is a principal public thoroughfare in the southern part of the city of Hannibal. It runs in a north and south direction from a point near the Mississippi River on the north to the outskirts of the city on the south. Buchanan Street is an east and west public street which runs into Union Street from the west and stops on the east side of Union Street. Buchanan Street is only one block in length, running down hill between Walnut Street on the west and Union Street on the east. Walnut Street parallels Union Street, being higher up on the hill. Walnut street at its north end stops at Buchanan Street, where there is a declivity

200 S.W.2d 549

guarded by a barrier, making that end of Walnut Street a "dead end." Union Street, where Buchanan Street enters and ends, is comparatively level for a short distance, only .9 per cent grade rising southwardly, but a little farther on it rises sharply again to the south. North of Buchanan Street, Union Street slopes downward abruptly to the north. At the dead end of Buchanan Street, and along near the east edge of Union Street, there is a drop in elevation, stated by witnesses to be about thirty feet near the street line to about sixty feet at the bottom of the declivity — it being about two hundred feet before reaching level ground. Both Union Street and Buchanan Street had smooth tarvia, called "black top," surfaces.

At the east or "dead end" of Buchanan Street, and along the east side of Union Street, the defendant had constructed a barrier, extending from the north line of Buchanan Street to the south line thereof. The general width of Union Street is about thirty or thirty-one feet, except that at the place where the barrier is located the street is narrowed to about twenty-four feet to accommodate the construction of the barrier. North of the barrier, for about one hundred feet or more, and south of the barrier, there is no sidewalk or curb — there being only a grass plot in what would be the sidewalk area. The barrier mentioned is made of concrete, railroad iron and steel pipe, and is a few feet more in length than the width of Buchanan Street, which is approximately twenty-five feet wide. The barrier extends two or three feet south of what would be the south line of Buchanan Street if that line were extended to the east side of Union Street. The houses located east of the east edge of Union Street are considerably below the level of the street — access thereto being had by steps descending from the street level to the level of the houses. Buchanan Street, as it approaches Union Street from the west, has a downward grade of ten per cent, that is, the street drops ten feet for each one hundred feet of length.

At the time in question Mr. Dowell was driving a 1937 Chevrolet panel truck and was engaged in delivering orders from his grocery store to his customers. The truck was equipped with four-wheel brakes operated by two sets of mechanisms — one the service or foot brake, and the other the emergency or hand brake. There was testimony showing in detail how the foot or service brake and the emergency or hand brake were operated. There was evidence showing that a few days prior to the day mentioned Mr. Dowell had the brakes on his Chevrolet truck adjusted by the Murphy Motor Company in Hannibal, and that on the evening preceding the day in question he had taken his automobile back to the company for further adjustment, and that after such adjustment the brakes were found to be in good condition.

On the day in question Mr. Dowell had started out from his place of business about 9:00 a.m. to make deliveries of groceries. With him in the truck was his wife's nephew, Richard Chaney, a high school boy. Mr. Dowell was doing the driving. He and the boy, Chaney, both did the delivering. A number of stops were made at different places in the south side of Hannibal, which is a very hilly section. Although they drove and stopped on a number of streets with steep grades, there was no trouble with the brakes. During the course of the deliveries, and about 11:00 a.m., they came down Walnut Street, which is one block west of and parallel to Union Street, and, arriving at the intersection of Walnut with Buchanan Street, they turned east on Buchanan Street toward Union Street. When they were about half way down the block, or about 100 to 150 feet from Union Street, according to Chaney's testimony, Mr. Dowell put on the service or foot brake. Chaney said that he saw Mr. Dowell put his foot on the pedal and push it clear down to the floor, but that there was no slowing of the forward speed of the car; that the car was gaining momentum; that Mr. Dowell also put his hand on the emergency brake and jerked it; that it was Mr. Dowell's intention to turn north on Union Street to go toward his store, but discovering that he had no control of the car, he swung toward the north side of Buchanan Street, which was the left-hand side, and attempted to make a turn

200 S.W.2d 550

southward on Union Street along the level portion of the street, rather than to turn north downhill on Union Street at that point. The testimony shows that as the car started down the hill on Buchanan Street it was going about ten or twelve miles per hour, but as it entered the intersection it was moving about fifteen miles an hour and Mr. Dowell swung the car to the south. It did not turn, however, completely into Union Street, but ran off the east side of Union Street at a point about fifteen to twenty feet south of the south end of the barrier and down onto private property there located, and down the hill until it struck a tree. When the car went over the side it was going about twenty miles per hour. Marks of the car's tires in the intersection showed that the car made a wide turn into Union Street and then went diagonally southeast to the point where it went over the side. The collision of the car with the tree caused Mr. Dowell to sustain the injuries from which he later died. Testimony showed that the car went over the side, front wheels first, but on an angle; that when it struck the tree and stopped it was about twenty-eight feet more or less south of the south end of the barrier mentioned, and about fourteen feet east of the east edge of Union Street, and was lying on its left side with Mr. Dowell pinned in it. Chaney was also injured and rendered unconscious.

During the cross-examination of witness Chaney he stated that Mr. Dowell's truck had a gear shift attached to the floor of the car with a gear shift lever on the driver's right-hand side; that the car was in high gear as it went down Buchanan Street. The witness was then asked if Mr. Dowell had at any time made any attempt to get the car into second or low gear, and answered that Mr. Dowell "didn't have time." The witness was then asked: "Did he make any attempt to do it?", and answered: "He couldn't with one hand on the emergency brake and one on the wheel."

James B. Featherstone, for many years a police officer of the City of Hannibal, testifying as a witness for defendant, stated that in a distance fourteen feet south from the south end of the barrier, on the east side of Union Street, there was a drop in the ground of about eleven feet, and that it was probably two hundred feet south of the barrier before one could drive off of Union Street going eastwardly.

Defendant contends that plaintiff failed to make a submissible jury case, and that the trial court erred in refusing to direct a verdict in its favor at the close of plaintiff's evidence and at the close of all the evidence. In support of its contentions defendant cites a number of cases and authorities. We think it would serve no useful purpose for us to engage in a detailed discussion of such authorities and cases because an examination thereof discloses that the facts under consideration...