Fitzpatrick v. Service Const. Co.
| Citation | 56 S.W.2d 822 |
| Decision Date | 07 February 1933 |
| Docket Number | No. 22183.,22183. |
| Court | Court of Appeal of Missouri (US) |
| Parties | L.W. FITZPATRICK, RESPONDENT, v. SERVICE CONSTRUCTION COMPANY, A CORPORATION, APPELLANT. |
Appeal from the Circuit Court of St. Francois County. — Hon. I.N. Threlkeld, Judge.
REVERSED AND REMANDED.
Lawrence E. Tedrick for appellant.
(1, 2) The court should have sustained defendant's demurrers offered at the close of plaintiff's case and again at the close of the whole case, for the law imposes no duty upon the defendant to remove a nuisance from a public highway which it did not put there. Lucas v. St. L. & S. Ry. Co., 73 S.W. 589, l.c. 591. Where one's property is made an obstruction by another, the former, if not a party to the wrong is not liable. 29 C.J. 691; Davis v. Williams, 4 Ind. 487, 31 N.E. 204; Clapper v. Waterford, 131 N.Y. 382, 30 N.E. 240. (3) (a) Plaintiff's Instruction No. 1 is erroneous, because it authorizes the jury to find for plaintiff if they find that defendant "permitted a roadway pavement finishing machine to be left and allowed to stand on a public highway at or near the city limits of Farmington, Missouri, and that said roadway pavement finisher, was left standing on said highway in a position such as to obstruct the traveled portion thereof ...," without requiring them to find that defendant knew, or by the exercise of ordinary care could have known it was so placed, in time, to have removed same or to have taken other precautions to eliminate the danger therefrom. In other words it does not require the jury to find that defendant had actual or constructive notice of the position of the pavement finisher, as a condition precedent to plaintiff's recovery. 29 C.J. 691, and cases therein cited; Eisenberg v. Mo. Pac. R. Co., 33 Mo. App. 85; Witte v. Stiffel, 28 S.W. 891, 126 Mo. 295; Scott v. Klein's, Inc., 284 S.W. 831; Davidson v. Frisco, 229 S.W. 786; Yocum v. Town of Trenton, 20 Mo. App. 489; Dougherty v. Weeks, 126 App. Div. 786, N.Y. Supp. 218. (b) Said instruction is further erroneous because it is in direct conflict with Instruction No. D-2, given at the request of the defendant. Instruction D-2 correctly states the law applicable to the question of defendant's knowledge as to the position of the pavement finisher and the resultant danger therefrom. Phillips v. Foundry Co., 274 S.W. 963; Woosley v. Wabash Ry. Co., 274 S.W. 871; State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Anderson v. Sutton, 308 Mo. 406, 275 S.W. 32; Crone v. United Rys. Co., 236 S.W. 654; Nagy v. St. Louis Car Co., 37 S.W. (2d) 513; Roark v. Stone, 30 S.W. (2d) 647. (c) An erroneous instruction, which is in direct conflict with a proper instruction given at the request of the opposite party, is not cured by the giving of the proper instruction. Phillips v. Foundry Co., 274 S.W. 963; State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Ward v. Stutzman, 212 S.W. 65, and cases therein cited; Alexander v. Barnes Grocer Co., 7 S.W. (2d) 370, l.c. 373; Gray v. Nations, 23 S.W. (2d) 1080. (d) This instruction is further erroneous because it does not properly instruct the jury as to the measure of damages, and for the further reason that it assumes that plaintiff sustained a loss or damage. The measure of damages is the difference in the reasonable market value of plaintiff's property immediately before, and immediately after the collision. Barnes v. Elliott, 251 S.W. 488; Brown v. Zorn, 275 S.W. 572; Stevenson v. A.B. Fireproof Warehouse Co., 6 S.W. (2d) 676; Blanke v. United Rys. Co., 213 S.W. 174; Yawitz Dyeing & Cleaning Co. v. Erlenbach, 221 S.W. 411. (e) An instruction must not assume disputed facts. Jackson v. Anderson, 273 S.W. 429; Welty v. S.H. Kress & Co., 295 S.W. 501, 221 Mo. App. 1089; Warner v. Frisco, 274 S.W. 90, 218 Mo. App. 314; Laughlin v. Gorman, 239 S.W. 548, 209 Mo. App. 692; Martin v. American Magstone Corp., 247 S.W. 465. (f) Plaintiff's Instruction No. 1 is also erroneous as there is no law in this State to justify the giving of same. The statute requiring red lights one-half hour after sunset until one-half hour before sunrise, visible for a distance of 500 feet, applies only to motor vehicles (Sec. 7778, R.S. 1929). Defendant's Instruction No. D-1 correctly declares the law of this case relative to the placing of lights on the machine and plaintiff's Instruction No. 1 being in conflict therewith is another reason why same should not have been given. Sec. 7778, R.S. 1929; Phillips v. Foundry Co., 274 S.W. 963; State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Ward v. Stutzman, 212 S.W. 65, and cases therein cited; Alexander v. Barnes Grocer Co., 7 S.W. (2d) 370; Gray v. Nations, 23 S.W. (2d) 1080; Gardner v. Metropolitan St. Rys. Co., 122 S.W. 1068; Roark v. Stone, 30 S.W. (2d) 647; Ward v. First Natl. Bank, 27 S.W. (2d) 1066. (g) Plaintiff's Instruction No. 2, defining defendant's duty relative to placing lights upon its pavement finishing machine is also erroneous because it does not correctly declare the law and for the further reason that same is in conflict with defendant's Instruction No. D-1. Cases cited under (f) Points and Authorities 3. (4) The court erred in refusing defendant's Instruction No. D-6. The question as to whether or not plaintiff's failure to slacken the speed of his automobile when passing through a cloud of dust immediately before the collision amounted to negligence sufficient to preclude his recovery was a question for the jury and should have been submitted to them. Murphy v. Hawthorn, 244 Pac. 79; 1 Blashfield Cyc. Auto. Law, 353; Powell v. Scofield, 15 S.W. (2d) 876.
E.W. Allison for respondent.
(1) As defendant did not stand on its demurrer at the close of plaintiff's evidence but offered evidence in its defense, plaintiff is, therefore, entitled to the benefit of all favorable evidence in the whole case and may use defendant's evidence in support of his own. Krummenacher Drug Company v. Choteau, 296 S.W. 255; Hague v. Threadgill, 236 S.W. 895. Further, the court did not err in overruling defendant's instruction in the nature of a demurrer offered at the close of the whole case. For the purposes of this demurrer, it is elementary plaintiff's evidence is to be taken as true, and he is entitled to all reasonable inferences therefrom, while defendant's contrary evidence is to be taken as untrue. Durbin v. Railroad, 275 S.W. 358, l.c. 360; Roark v. Stone, 30 S.W. (2d) 647, l.c. 648. (2) There is no merit in appellant's assignment of error that the court erred in giving plaintiff's Instruction No. 1. This instruction being a general one and correct as far as it goes, defendant cannot complain because it does not in detail present its theory of the case. It should ask instructions presenting its own theory. Quinn v. Van Raalte, 276 Mo. l.c. 102. If defendant were dissatisfied with general instruction, it should have offered one more to its liking. Big River Lead Company v. Railroad, 123 Mo. App. 394; Matthews v. Railway, 142 Mo. l.c. 655; State ex rel. Motor Car Company v. Trimble, 322 Mo. l.c. 1083; Jablonowski v. Modern Cap Manufacturing Company, 312 Mo. l.c. 194.
This is an action to recover from defendant $660 for damages to plaintiff's automobile, clothing and eyeglasses, alleged to have been caused by defendant's negligence in permitting a roadway pavement finisher belonging to defendant to stand upon a public highway in the nighttime without any lights or signal lamps attached thereto, and without any barricades for warning or protection to the public.
A trial before the court and a jury resulted in a verdict and judgment for plaintiff in the sum of $650. Defendant has appealed.
The theory upon which plaintiff brought and submitted this case is shown by the following language in the petition:
"That at all said times it became and was the duty of persons in charge of any vehicle, while on said highway, whether in operation or at rest, during the period from one-half hour after sunset to one-half hour before sunrise to carry thereon and have attached to such vehicle, so being upon said highway, a lighted signal lamp or lamps so constructed, mounted and adjusted as to be plainly visible from a distance of at least five hundred (500) feet in the direction projected."
It is clear that the portion of the petition above set forth is based upon Section 7778, Revised Statutes 1929 (7 Mo. St. Anno., sec. 7778, p. 5522). It erroneously assumes, however, that said Section applies to "any vehicles," whereas, it applies only to a "motor vehicle." The petition then charges that on the 20th day of June, 1930, and during the period one-half hour after sunset to one-half hour before sunrise:
"Defendant herein, being the owner and having under its control and in its care and custody a certain vehicle; to-wit: A roadway pavement finisher of the weight of about five tons, stationed and left said roadway pavement finisher standing, being and parked upon the concrete pavement slab of said Highway No. 61, at a point at or near the city limits of the City of Farmington, in said county and State, and the said roadway pavement finisher, as aforesaid, and at the time aforesaid, was standing and parked upon the concrete pavement and within five inches of the center line of said pavement without any signal lamps or other lights of any kind or character attached thereto or projecting therefrom and without any barricades put up and constructed about said pavement finisher for warning, signal or protection to the traveling public using said highway at the time."
It is further alleged that during the period between sunset and sunrise while plaintiff was operating his automobile upon the highway at the place mentioned, his automobile came into violent collision with defendant's roadway pavement finisher, thereby causing the damage complained of. The petition alleges that the negligence and carelessness of defendant "in so leaving, and permitting said...
To continue reading
Request your trial