Haines v. Bridges Asphalt Paving Co., 30756.

• Decision Date: 22 October 1932
• Docket Number: No. 30756.,30756.
• Parties: HAINES v. BRIDGES ASPHALT PAVING CO.
• Court: Missouri Supreme Court

55 S.W.2d 431

HAINES v. BRIDGES ASPHALT PAVING CO.

No. 30756.

Supreme Court of Missouri, Division No. 1.

October 22, 1932.

Rehearing Overruled December 20, 1932.

Appeal from St. Louis Circuit Court; James F. Greene, Judge.

Action by Harry Haines against the Bridges Asphalt Paving Company and another. From the judgment in favor of plaintiff, named defendant appeals.

Reversed and remanded.

Carter, Jones & Turney, Theodore Rassieur, George M. Rassieur, and John P. Mc-Cammon, Jr., all of St. Louis, for appellant.

Mark D. Eagleton, Jordon Clark, and Frank P. Aschemeyer, all of St. Louis, for respondent.

RAGLAND, J.

This is a personal injury case. Respondent, a member of the metropolitan police force of the city of St. Louis, while standing near the center of the intersection of Cardinal avenue and Olive street in said city, directing traffic, was run over and injured by a steam roller operated by appellant. The petition alleged:

"That on or about April 20, 1928, plaintiff was in and upon Olive street, at or near its intersection with Cardinal avenue, both open and public streets and highways in the City of St. Louis, Missouri; that defendants then and there, by and through defendant Paul De Guire, propelled, backed and operated a steam roller over and along said Olive street, at or near the aforesaid intersection, and did then and there with great force and violence collide with and strike plaintiff, all of which directly and proximately resulted from the negligence and carelessness of defendants, in the following respects, towit: * * *

"Defendants acting by and through defendant Paul De Guire, who was the agent and servant of the defendant Bridges Asphalt Paving Company, in charge of and operating said steam roller, saw or by the exercise of ordinary care could have seen plaintiff upon said highway, in a position of imminent peril of being struck and injured by said steam roller of defendants, in time for defendants thereafter, by the exercise of ordinary care, with the means and appliances at hand, and with reasonable safety to defendant's said steam roller and the occupants thereof, to have stopped said steam roller, swerved the same or kept the same stopped and motionless or given a warning signal of its approach, proximity, movement, starting up or turn, and thus and thereby could have avoided striking and injuring plaintiff, but defendants negligently failed to do so."

The answer consisted of a general denial and a plea of contributory negligence. The reply denied generally the allegations of the answer.

The action was commenced against the appellant and one Paul De Guire, who was operating the steam roller at the time of respondent's injury, but the cause was dismissed as to him at the conclusion of the evidence.

On the trial below the jury found the issues for plaintiff (respondent), and assessed his damages at $17,500. The trial court required, as a condition for overruling the motion for a new trial, a remittitur of $5,500. This was entered and judgment rendered for the remainder of the damages as assessed. From such judgment this appeal is prosecuted.

The two assignments of error upon which appellant chiefly relies for a reversal of the judgment are: (1) The overruling of its demurrer at the close of the evidence, and (2) the giving of plaintiff's instruction No. 3 which hypothesized the facts upon the finding of which the jury was directed to return a verdict in plaintiff's favor. The facts which the evidence tended to show will be stated with these assignments in mind.

Olive street runs east and west; Cardinal avenue north and south. At the point of their intersection, Olive street ordinarily carried a large volume of traffic of all kinds; it was a busy street, along and over which vehicles and pedestrians in great numbers as well as street cars were constantly moving. At the time plaintiff received his injury, however, the southern half of the street was being repaved, and an effort was being made through traffic officers and by the use of barricades to keep traffic off the street at the place where the work was still in progress as well as off the pavement so recently laid that it was still soft. The work proceeded from west to east, and as it progressed the barricades were advanced accordingly. Cardinal avenue was 36 feet in width from curb to curb. There was a barricade across it along the south side of Olive street; there was also a barricade across the south side of Olive about a half block west of Cardinal. There were no barricades on or along the north side of Olive street, and traffic was moving there as usual.

The paving operation consisted of pouring hot asphalt on the street surface, leveling it with a rake and straight edge, rolling and cross-rolling it after it had sufficiently cooled, and then sprinkling cement dust on it and rolling it again. One of the rollers used was a ten-ton steam roller. It moved on three broad-rimmed wheels or rollers, two in the rear, on which the greater part of the weight of the machine rested, and one in front. The operator sat in a cab on the left side at the rear. In operating the roller he did not look ahead constantly, but only from time to time; he looked downward, backward, and to the left, using the rear wheels as his guide.

The foregoing facts appear from the evidence as to which there is no conflict. If the evidence most favorable to plaintiff alone be accepted as true, there are these further facts:

Respondent arrived at the intersection of Olive street and Cardinal avenue at 7:30 in the morning of the day on which he was hurt. At that time the paving had been fully completed to a point 75 feet east of the east line of Cardinal avenue,...