Hamra v. Helm

• Decision Date: 02 March 1926
• Docket Number: No. 3848.,3848.
• Citation: 281 S.W. 103
• Parties: HAMRA v. HELM et al.
• Court: Missouri Court of Appeals

281 S.W. 103

HAMRA v. HELM et al.

No. 3848.

Springfield Court of Appeals. Missouri.

March 2, 1926.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Philip Hamra against N. W. Helm and another doing business under the name of the N. W. Helm Construction Company. Judgment for plaintiff, and defendants appeal. Reversed.

Von Mayes, of Caruthersville, for appellants.

Sam Y. Corbett, of Caruthersville, for respondent.

BAILEY, J.

Action for damages resulting to plaintiff's automobile by reason of striking a manhole projecting above the excavated surface of a public street in the city of Caruthersville on the night of April 8, 1924. The city of Caruthersville was made a defendant, but plaintiff dismissed as to it. Verdict and judgment was for plaintiff in the sum of $450, from which defendants have appealed.

At the close of plaintiff's case, and again at the close of the whole case, defendant offered a demurrer to the evidence. The action of the trial court in refusing to sustain the demurrers is assigned as error.

The evidence shows that the accident occurred at the intersection of Ninth street, running east and west, and Walker avenue, running north and south, in the city of Caruthersville. Ninth street had been "torn up" in October, 1923, preparatory to pavement. The street had been excavated so that there was a sharp drop of 5 or 6 inches to be encountered by any one driving on Walker avenue at the point where it intersected Ninth street. In the center of the intersection of the two streets was an iron sewer manhole, the top of which, on account of the excavation in Ninth street, stood about 9 inches above the ground. This condition of the street and manhole had existed since October, 1923, or for a period of approximately 6 months before the night of the accident. There had been some delay in completing the paving, and the street had been used more or less for travel from the intersection with Waker avenue west one block to Ward avenue.

It is admitted that no light, barrier or anything else calculated to give warning of danger, had been placed at the manhole on the night in question, and in that respect defendant may be said to have been guilty of negligence. The principal question in the case is whether or not plaintiff was guilty of such contributory negligence as to bar his recovery as a matter of law. If there was any evidence upon which to submit the case to the jury, the peremptory instructions were of course properly overruled.

Plaintiff's testimony indicates he had lived in the city of Caruthersville for many years prior to the accident; he lived on East Eleventh street, two blocks south of Ninth street and in the block lying between Ward avenue and Walker avenue; in other words, plaintiff resided two blocks south and about one-half block west of the place where the accident occurred. He owned the car which was damaged. Plaintiff testified on direct examination that:

"Mr. Helm and Mr. England began working on Ninth street about October, 1923. They tore up the street. They graded it up and everybody traveled on that street. I go' home back and forth every day, and I never know that street closed. I ordinarily take Ward avenue on my way home; that is a paved street running in front of the schoolhouse, I live about a half a block east of the grammar school; I live approximately in the center of the block on East Eleventh street. Walker is the next block from Ward, I hardly ever traveled Walker avenue. I was coming down Walker avenue when we come in. As I gets to that place, I thought it had been traveled—no rope nor no lights to keep me from traveling, and it looks like a little edge to it, a little high and low all over the ground, and just drove that car so slow; never did see anything in front of me until something is hit, and when I go down right on top of this thing; the manhole or cap stuck up 15 or 20 inches above the ground. My axle passed over it that night but the crank case never did go over, just tore it to pieces. I was driving; my wife and children were there. I slowed down my car when I approached this place where the street was excavated. The street had been left open to the traveling public by Mr. Helm and Mr. England; there was no rope or anything around this place to show this obstruction. I did not know prior to this accident that this manhole and cap were there."

On cross-examination, plaintiff testified that the first time he ever drove his car to Ninth street on Walker avenue was on the night of the accident. He further testified that :

"They have manholes all over town; they have manholes at every. street crossing in this town where they have the sewer system. I never gave it a thought whether there was a manhole down there at the intersection of Walker and Ninth street; I never thought nothing about it until it tore up my car and then I thought something about it. The lights on my car were burning and I could see pretty good; I never did see that thing at all, but I knew that at every street intersection in this city that there existed a manhole like this one I run against. I go home every evening and back every morning on Ward avenue, the head of Ninth street. It is a block from that to where the accident happened. I saw this street tore up every morning and every evening. X knew the street was torn up."

As to the manner in which he approached Ninth street he stated:

"I slowed my car up before I got to Ninth street because a little dangerous to go over; dangerous because one has higher edge than the other. There was a drop of six or seven inches when I went into Ninth street, and that was on account of something being done to the street."

He further testified he thought he started to turn west on Ninth street just before he entered Ninth street. The front wheels of his car straddled the manhole, and his front axle cleared it. His cross-examination further developed as follows:

"Q. Did you see the manhole? A. I seen it after the accident; I never did see it before; told you that a thousand times,

"Q. Isn't it a fact you never looked for that manhole?...