Fowler v. Laclede Gas Co., 34512

• Decision Date: 12 December 1972
• Docket Number: No. 34512,34512
• Citation: 488 S.W.2d 934
• Parties: Cornelius FOWLER, Plaintiff-Appellant, v. LACLEDE GAS COMPANY, Defendant-Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 934

488 S.W.2d 934

Cornelius FOWLER, Plaintiff-Appellant, v. LACLEDE GAS COMPANY, Defendant-Respondent.

No. 34512.

Missouri Court of Appeals, St. Louis District, Division One.

Dec. 12, 1972.

Raymond Howard, St. Louis, for plaintiff-appellant.

M. E. Stokes, St. Louis, for defendant-respondent.

McMILLIAN, Judge.

This is a negligence action for personal injuries alleged to have been sustained by the plaintiff, Cornelius Fowler, on June 19, 1968, while operating his motor vehicle on a public street in the City of St. Louis, Missouri. The jury awarded plaintiff a verdict of $10,000.00.

Defendant--Laclede Gas Company's, (hereinafter referred to as Laclede) post-trial motion for judgment was denied; but its motion for a new trial was sustained. Plaintiff has appealed; and thereafter Laclede moved for a dismissal of the appeal for violation of Civil Rule 84.04(c) and (e), V.A.M.R.

A new trial was ordered on the following grounds that: (1) plaintiff's verdict director was faulty for failure either to refer to or negate Laclede's affirmative defense of contributory negligence; (2) plaintiff used M.A.I. 22.02, modified, instead of M.A.I. 2204, modified; (3) plaintiff's verdict director failed to submit Laclede's actual or constructive knowledge of the absence of warning lights or other devices; and (4) plaintiff's failure to define 'ordinary care' as used in his verdict director.

While plaintiff's brief is subject to both criticisms made against it by Laclede; namely, the statement of facts was incomplete and inaccurate, Civil Rule 84.04(c), and that plaintiff's brief failed to include the complained of instructions, Civil Rule 84.04(e), yet we feel that the interest of justice is best served by a disposition on the merits rather than a technicality. In Sippel v. Custom Craft Tile, Inc., Mo.App., 480 S.W.2d 87, this court's refusal to consider error concerning instruction left out of a brief did not result in the dismissal of the whole appeal.

Laclede's argument, i.e., that its motion for a directed verdict at the close of the case along with its contention that plaintiff's verdict director failed to submit actual or constructive knowledge of the absence of some sort of warning, will be discussed hereinafter. Accordingly, a brief summary is made of the evidence.

At about 11:30 P.M., June 19, 1968, plaintiff was driving his automobile west on Natural Bridge Avenue, between Norwood and Kingshighway Boulevard, when his car fell into an excavation in the center lane. The excavation was nine feet long, six feet deep and three feet wide, and had only a pile of dirt in front of it. According to plaintiff, there were no lights, no barricade, or any type of warning device.

Defendant admitted making the excavation, but claimed the area, which was closed down at 4:30 P.M. was lit up like a Christmas tree with all kinds of barriers. On cross-examination, in support of its affirmative defense that plaintiff failed to keep a lookout, Laclede developed that: (1) the area was well lighted by street lights, (2) the weather was clear and dry, (3) the plaintiff had good vision and his windshield was unobstructed, (4) his car was new and had good headlights, (5) no vehicle was to the front of plaintiff so that his view ahead was clear, (6) plaintiff was driving at a speed of 25 miles per hour and he continued in the same lane without swerving or taking any evasive action prior to the accident, and (7) plaintiff ran over a pile of dirt into the excavation.

Laclede claims that the trial court erred for not sustaining its motion for judgment because plaintiff failed to show any actual or constructive knowledge on Laclede's part that a dangerous condition existed, DePung v. City of St. Louis, Mo.App., 425 S.W.2d 509; Whitney v. Central Paper Stock Co., Mo.App., 446 S.W.2d 415; and Pagano v. Kolbrener, Inc., Mo.App., 469 S.W.2d 745.

To test the submissibility of plaintiff's case, we review the theory upon which plaintiff grounded his recovery, and we consider the evidence in the light most favorable to plaintiff. Schneider v. Prentzler, Mo., 391 S.W.2d 307, 309.

Plaintiff's theory as pleaded, proved, and submitted was that Laclede had created a dangerous condition on a public street; that the location of the excavation exposed persons using the streets in the exercise of the highest degree of care, to a danger of falling into the excavation; that Laclede failed to take precaution either to place barricades or warning devices at or near the excavation; that plaintiff drove his automobile into the excavation; and as a direct result thereof sustained injuries. Since a jury could have reasonably found the above facts, it was not error to deny Laclede's motion for a directed verdict. Turning to Laclede's claim that plaintiff failed to prove actual or constructive knowledge that a dangerous condition existed, it is conceded that Laclede's work in the street is done under license by the City of St. Louis and it is liable only for failure to exercise ordinary care in the performance of its work. Grab v. Davis Construction Company, 233 Mo.App. 819, 109 S.W.2d 882. However, Laclede says that it is incumbent upon plaintiff to show a reasonable period of time when the dangerous condition of the excavation could have been discovered by Laclede in order that the condition could have been...