German v. Kansas City, 56584

• Court: United States State Supreme Court of Missouri
• Writing for the Court: PER CURIAM; SEILER; BARDGETT, J., concurs and concurs in separate concurring opinion of SEILER; DONNELLY, C.J., and HENLEY; HOLMAN; SEILER; HOLMAN
• Citation: 512 S.W.2d 135
• Parties: Norman A. GERMAN, Appellant, v. KANSAS CITY, Missouri, a Municipal Corporation, and Tri-City Construction Company, a Corporation, Respondents.
• Docket Number: No. 56584,56584
• Decision Date: 24 June 1974

Page 135

512 S.W.2d 135 Norman A. GERMAN, Appellant,
v.
KANSAS CITY, Missouri, a Municipal Corporation, and Tri-City
Construction Company, a Corporation, Respondents. No. 56584. Supreme Court of Missouri, En Banc. June 24, 1974.
Rehearings Denied July 22, 1974.

Page 137

David H. Clark, David K. Hardy, Kansas City, for appellant; Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel.

Aaron A. Wilson, City Counselor, Robert A. Dakopolos, Associate City Counselor, Joseph R. Hachey, Thomas C. Clark, Asst. City Counselors, Kansas City, for respondent, Kansas City, Missouri.

Lowell L. Knipmeyer, Douglas H. Delsemme, Knipmeyer, McCann, Fish & Smith, Kansas City, for respondent, Tri-City Const. Co., a corporation.

HIGGINS, Commissioner.

Appeal (taken prior to January 1, 1972) from judgment for defendants entered pursuant to a directed verdict at the close of plaintiff's evidence in his action for $100,000 damages for personal injuries and for $50,000 damages for wrongful death of his wife.

On January 20, 1968, plaintiff was driving his motor vehicle with his wife as a passenger when the vehicle collided head on with another vehicle near the crest of a hill on 63rd Street Trafficway, Kansas City, Missouri.

Plaintiff alleged: that certain construction work was being performed on the section of 63rd Street Trafficway in question and that the work consisted generally of

Page 138

converting the street from a two-lane street with the northern lane carrying westbound traffic and the southern lane carrying eastbound traffic into a four-lane street with the two northernmost lanes carrying one-way westbound traffic and the two southernmost lanes carrying one-way eastbound traffic; that by contract with defendant Kansas City, defendant Tri-City was the general contractor engaged in and in charge of the construction work; that it was the duty of Tri-City to provide traffic controls, directions, warnings and safeguards for the motoring public traveling the street; that on and prior to January 20, 1968, construction had progressed to the point that all required additional paving had been completed, thereby creating a four-lane roadway upon which continuous one-way westbound travel in the two northernmost lanes and continuous one-way eastbound travel in the two southernmost lanes appeared to be and was possible; that defendant Tobin Construction Company (no longer a party) permitted travel by the motoring public in all four lanes with the two northernmost lanes carrying one-way westbound traffic and having signs, markings, and other devices so informing west bound motorists, and the two southernmost lanes carrying one-way eastbound traffic and having signs, markings, and other devices so informing eastbound motorists; that defendants Kansas City and Tri-City permitted travel by the motoring public in only the two northernmost lanes with the northernmost of those two lanes carrying westbound traffic and the lane immediately adjacent thereto carrying eastbound traffic, thereby changing the traffic routing in the lane immediately adjacent to the northernmost lane from westbound traffic to eastbound traffic; that defendants Kansas City and Tri-City knew or, in the exercise of ordinary care, should have known of such change in traffic routing and that it would create an unsafe and dangerous condition for westbound motorists unless reasonably adequate notice, warning, or indication of the condition was given; that plaintiff was not given adequate notice, warning or indication of the change in traffic routing but instead was deceived, deluded, lulled, and misled into believing that westbound traffic in both the two northernmost lanes was permitted, whereupon he drove his automobile westerly in the lane immediately adjacent to the northernmost lane and as a direct and proximate result of defendants' negligence was caused to sustain a head-on collision with a vehicle being driven easterly in the same lane; that defendants 'each negligently and carelessly failed to devise, construct, furnish, locate, emplace, maintain and keep unobscured such signs, signals, markings, barricades and other devices as were necessary to give westbound motorists such as plaintiff reasonably adequate notice, warning or indication of the change in traffic routing that had taken place; negligently and carelessly caused and allowed the pavement stripes and markings which were present to become obscured with mud, sand, and other debris and to remain in such condition; negligently and carelessly failed to supervise and control * * * Safe-T-Flare Corporation and Safe-T-Flare Rental Service Incorporated in their furnishing, emplacement and maintenance of barricade 'blinker' devices; and negligently and carelessly failed to coordinate with each other and with each of the other defendants (no longer parties to this action) and with the Missouri State Highway Department to provide the adequate notice, warning or indication of the aforesaid change in traffic routing.'

Defendant Kansas City generally denied plaintiff's petition and pleaded defenses of contributory negligence and governmental immunity; defendant Tri-City generally denied the petition and pleaded contributory negligence.

For many years 63rd Street Trafficway was a two-way, two-lane street running generally east and west. Its paved width was 23 feet and there was a shoulder on each side of the payment. In 1966 defendant Kansas City contracted with defendant

Page 139

Tri-City for the widening, paving, grading, and curbing of a section of 63rd Street, then a two-lane roadway, into a four-lane roadway, between the east end of the Blue River Bridge and the west right-of-way line of Interstate Highway 435. At the time of the accident the work had been completed to the extent that 63rd Street was a four-lane undivided roadway open to and used by the public over most of that portion of the project east of the accident scene. From a short distance east of the scene and to the west beyond the scene, the roadway was four lanes separated by a dividing median or center island. There was a crossover of the median between the scene and the west end of the project.

On January 20, 1968, plaintiff and his wife left their home in St. Louis at 6:00 a.m. for Kansas City and a weekend visit with plaintiff's brother. Plaintiff traveled west on Interstate Highway 70 to Blue Ridge Boulevard, drove south to 63rd Street, and proceeded west on 63rd over which he had not driven for eight to ten months. He had visited his brother on previous occasions upon which 63rd had been a two-way street with one lane in each direction. At the time of the accident, 10:00 a.m., the sky was overcast and there was a drizzle. Plaintiff's windshield and windows were clear, his lights were off, and his vision was unobscured. As he passed through the four-lane undivided section of 63rd Street, east of the accident scene, plaintiff traveled in the inside westbound lane, i.e., the lane next to the center line dividing the eastbound and westbound traffic lanes. He did not change lanes from the time he entered 63rd to the accident site. Plaintiff did not recall any signs along the north side of the street as he approached the median except a speed limit sign. Neither did he recall a double yellow line on the pavement east of the median strip. He did recall painted lines dividing the two westbound lanes from the two eastbound lanes on the four-lane roadway east of the median. As he approached the median and proceeded west to and beyond the east tip of the median, plaintiff noted a film of mud on the pavement and reduced his speed to 25 to 30 miles per hour from the approximately 35 miles per hour he had been traveling prior to that time. Plaintiff did not see any markings to indicate the road was changing from four to two lanes. He observed sawhorse barricades with light devices stacked at the median tip but saw no barricades blocking the lanes on either side of the median. He looked into his rear-view mirror when about one-eighth mile east of the median tip and noted an automobile behind him in the same lane. There was also a car in the outside lane to his right as he passed the median tip. At a point approximately halfway to the crest of the hill where the collision occurred, he again noticed a car three or four lengths to his rear in the same lane. As plaintiff reached the crest of the hill, an eastbound white car 'popped over the hill' and swerved right to the shoulder of the median. Plaintiff turned to his right and, as the white car swerved to the median, he saw a pickup truck traveling easterly immediately behind the white car. Plaintiff applied his brakes and came into head-on collision with the truck.

Kenneth Small was traveling behind plaintiff in the lane to plaintiff's right. Don Small, Kenneth's brother, was traveling behind plaintiff in the same lane. They had entered 63rd Street at I--435 and proceeded west a few car lengths behind plaintiff. They were driving at 30 to 40 miles per hour and did not seem to gain or lose ground with respect to plaintiff. Both men were familiar with 63rd Street between I--435 and the Blue River Bridge.

Kenneth Small, traveling in the northernmost of the four undivided lanes, recalled a 'Two Way Traffic' sign on the right shoulder near the median tip; it was 'fairly dirty.' He did not recall a diamond-shaped sign marked '1 Lane,' or any other signs east of the median. Don Small, behind plaintiff and in the same lane, did not recall any traffic-directing signs on 63rd the morning of the accident.

Page 140

Kenneth Small saw barricades on the median but none on the roadway; Don did not see any barricades. Both brothers, as they approached the median, saw eastbound traffic coming toward them on the south side of the median using the southernmost lanes. Neither recalled any lines painted on the roadway; both described the road as 'dirty.'

As plaintiff approached the crest of the...