Glader v. City of Richmond Heights
| Decision Date | 08 November 1938 |
| Docket Number | 24732 |
| Citation | 121 S.W.2d 254 |
| Parties | CHARLES H. GLADER, Respondent, v. CITY OF RICHMOND HEIGHTS, a municipal corporation, CITY OF ST. LOUIS, a municipal corporstion, SPINIELLO CONSTRUCTION COMPANY, a corporation, and WILLIAM O. ROHMANN, Defendants, CITY OF RICHMOND HEIGHTS, a municipal corporation, and SPINIELLO CONSTRUCTION COMPANY, a corporation, Appellants |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County. Hon. Peter T. Barrett Judge.
REVERSED AND REMANDED CONDITIONALLY.
Plaintiff brings this action for injuries to his person and to his automobile resulting from a collision of his automobile with defendant Rohmann's automobile. The collision occurred on August 1, 1935, on Clayton Road at a point about one hundred feet west of Bellevue Avenue in St. Louis County. The cause was dismissed as to the City of St. Louis for want of jurisdiction, and plaintiff filed an amended petition, upon which the cause was tried.
Plaintiff in his amended petition alleges that Clayton Road is an open public street and highway, paved with concrete, running east and west; that the south half of the road at the place where the collision occurred is in the City of Richmond Heights; that shortly prior to August 1, 1935, defendant Spiniello Construction Company had constructed and installed a large water main and pipe line in, over, under, and along that portion of Clayton Road which lies in the City of Richmond Heights; that in the course of such construction and on the last above mentioned date there existed in and upon said portion of said road a wide ditch, which on the above mentioned date was insufficiently filled in and covered over so as to avoid being dangerous to vehicles passing along and over said road; that there was caused to exist therein and defendants City of Richmond Heights and Spiniello Construction Company negligently permitted to remain in said portion of said highway a great number of large deep holes, ditches, ruts, and bumps, which rendered said highway dangerous and defective, and that by reason thereof said portion of said highway, all brought about and allowed to remain by defendants City of Richmond Heights and Spiniello Construction Company, was dangerous and not reasonably safe for vehicular traffic thereover, and that the defendants and each of them knew, or in the exercise of ordinary care could have known, of the said dangerous and defective condition of said highway in time to have repaired the same on and prior to the first day of August, 1935, but that said defendants and each of them wholly and totally failed and omitted to so repair and remedy and eliminate said dangerous and defective condition of said highway; that on the first day of August, 1935, at about six fifteen p. m., while he was driving his automobile westwardly over Clayton Road, when he reached a point about one hundred feet west of the intersection of Bellevue Avenue and Clayton Road, defendant Rohmann so carelessly and negligently operated and drove his automobile eastwardly over and along Clayton Road as to cause his said automobile to collide with the automobile so operated by plaintiff, and that defendant Rohmann was careless and negligent in that he failed and omitted to operate his automobile as near the right-hand curb of said Clayton Road as practicable, and that as a result of said failure and omission and carelessness and negligence of defendant Rohmann his said automobile collided with the automobile operated by plaintiff; that as a direct and proximate result of the carelessness and negligence of defendants City of Richmond Heights and Spiniello Construction Company in failing to keep and maintain said portion of Clayton Road referred to in a reasonably safe condition and allowing and permitting the same to remain in a dangerous and defective condition as aforesaid, and of defendant Rohmann's carelessness and negligence in failing to operate his said automobile as near the right-hand curb as practicable, all as aforesaid, plaintiff sustained serious and permanent injuries; that he has incurred reasonable and necessary expenses for medical and surgical attention and medicines in the reasonable sum of $ 200, and that he will in the future incur necessary expenses and medical and surgical attention and medicines, and that the damage to his automobile by reason of said collision is in the reasonable amount of $ 280.
Each of the defendants filed a separate answer, denying generally the allegations of the petition.
The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff against defendants City of Richmond Heights, Spiniello Construction Company, and William O. Rohmann for $ 1,800. Defendants City of Richmond Heights and Spiniello Construction Company appeal.
Defendant City of Richmond Heights asks a reversal of the judgment below on the ground that the amended petition upon which the cause was tried wholly fails to state a cause of action against said city. Defendant says that the petition is fatally defective (1) because it fails to allege in what manner its negligence caused or contributed to the injuries, and (2) because it fails to allege any causal connection between the dangerous condition of the street and the injuries. The petition was not attacked in any manner in the court below. We think the petition read as a whole charges, by fair intendment at least, that the collision was caused by the concurring negligence of the three defendants in that the two corporate defendants negligently created and permitted to remain in the highway a dangerous condition and the defendant Rohmann negligently failed to operate his automobile as near the right-hand curb as practicable. The petition is not to be commended as a model of good pleading, but it does not wholly fail to state a cause of action, and we entertain no doubt that it is sufficient as against an attack made for the first time on appeal.
Defendant Spiniello Construction Company assigns error for the refusal of its instruction in the nature of a demurrer to the evidence. Defendant puts this assignment on the ground that there was a failure to show any duty on its part with respect to maintaining Clayton Road in a condition of safety for vehicular traffic. The evidence shows that at the time of the collision, which occurred on August 1, 1935, at about six o'clock in the evening, plaintiff was driving west on Clayton Road and defendant Rohmann was driving east. Clayton Road is about sixty feet wide. The center line of the road is the boundary between the City of Clayton and the City of Richmond Heights. On each side of the center line there are three traffic lanes. The north lanes are used for westbound traffic, and the south lanes for eastbound traffic. At the time of the collision the eastbound lane adjoining the center line of the road had been torn up and a large water main placed in it and the ditch dug for the water main had been filled up with earth and rock, and the road was open for traffic. The road was paved with concrete, and the concrete in the lane where the water main was laid was torn up and removed. The concrete in the other lanes of the road remained intact. The work of laying the water main was done by defendant Spiniello Construction Company under a contract with the City of St. Louis. The contract was for the completion of the entire work, including the back fill and the laying of concrete over the same. The work was authorized by an ordinance, enacted by defendant City of Richmond Heights, which was in the nature of a contract between defendant City of Richmond Heights and defendant City of St. Louis.
The contract between the City of St. Louis and the construction company provided that all measures should be taken by the contractor whether required by law or not to insure the safety of the public by such precautions as fences, watchmen, lights, guards, and all, as the exigencies of the case called for. The ordinance of the City of Richmond Heights provided, among other things, that neither the City of St. Louis nor its contractor, nor contractors, nor subcontractors, would lay the completed slab over any portion within a period of less than ninety days after the back fill had been made, tamped and completed.
The street commissioner of defendant City of Richmond Heights testified that at the time of the accident the back fill had been in and open to the public about two weeks; that wooden horses had been used as barricades at an earlier time with warning lights; that the condition of the back fill was soft and had not settled sufficiently for the pavement slab to be put back; that he and one Easterday, the latter representing the City of St. Louis, made daily inspection trips along the back fill and whatever part needed work done on it was discussed and taken care of; that on the north of the temporary surface were three lanes of travel in good condition going west and on the south two lanes of travel in good condition going east, all five lanes being made of concrete; that they were all kept open for public use at all times; that there was no way to lay the water main without breaking the concrete, then digging the hole, then laying the water main in the hole, then filling the hole up; that in this they needed nature's help to get the back fill firm again over the water main; that after the back fill had firmly settled and nature had beaten it down they would relay the concrete on top; that if he noticed a bad spot or a bad condition in the back fill he would notify Mr. Easterday representing the City of St. Louis, and he would take care of it; that after the back fill had been completed it was some months before the concrete...
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