Jackson v. Southern Bell Tel. Company
| Decision Date | 02 March 1920 |
| Citation | 219 S.W. 655,281 Mo. 358 |
| Parties | RUELL W. JACKSON v. SOUTHERN BELL TELEPHONE COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. Thomas B. Allen, Judge.
Reversed.
W. B Norris, D. E. Palmer and Battle McCardle for appellant; D. A Frank and J. W. Gleed, of counsel.
(1) The location of the pole in question did not constitute negligence on the part of the defendant, and the accident complained of was caused by plaintiff's own fault and negligence, and was not due to any fault or neglect on the part of the defendant; and it was error for the court to refuse defendant's demurrer to plaintiff's evidence and defendant's request for peremptory instruction at the close of all the evidence. Sec. 3326, R. S. 1909; Julia Building Assn. v. Bell Telephone Company, 88 Mo. 258; McCann v. Telephone Company, 69 Kan. 210; Elliott on Roads & Streets (2 Ed.), par. 621; Nelson v. City of Spokane, 45 Wash. 31; Atchison v. City of St Joseph, 133 Mo.App. 563-566; Seibert v. Railroad Company, 188 Mo. 657; Eberhardt v. Telephone Company, 91 Kan. 763; Par. 9, sec. 12, Laws 1911, p. 330; Massie v. Barker, 113 N.E. 199; Baldwin v. Maggard, 162 Ky. 424; O'Dowd v. Needham, 13 Ga.App. 220; Wheat v. St. Louis, 179 Mo. 572. (2) Instruction No. 1, given on behalf of plaintiff stated incorrectly the degree of care required of plaintiff while driving an automobile upon the highway. Par. 9, sec. 12, Laws 1911, p. 330; Mitchell v. Brown, 190 S.W. 354; Meenach v. Crawford, 187 S.W. 879; Floweree v. Thornberry, 183 S.W. 359; Ex parte Kneedler, 243 Mo. 632; Baldwin v. Maggard, 162 Ky. 424; O'Dowd v. Needham, 13 Ga.App. 220; Massie v. Barker, 113 N.E. 199. (3) Said instruction ignored the issue made by the petition that the pole obstructed, narrowed and made unsafe the highway, and directed a verdict for plaintiff if it found only that plaintiff was incommoded by the manner in which the pole was set. It ignored the issue of negligence. Gay v. Mutual Union Tel Co., 12 Mo.App. 485; Julia Building Assn. Co. v. Tel. Co., 88 Mo. 258; Seibert v. Railroad, 188 Mo. 657; Atchison v. City of St. Joseph, 133 Mo.App. 563; Hook v. Bowden, 144 Mo.App. 330; Reedy v. Brew. Assn., 161 Mo. 523; Reno v. St. Joseph, 169 Mo. 543; Perrigo v. St. Louis, 185 Mo. 274.
L. C. Gabbert for respondent.
(1) The pole or guy stub in question was admitted to be nine feet in the public highway. The overwhelming evidence is to the effect that this pole narrowed the highway and was frequently run into and against by automobiles other than the plaintiff's. Placing the pole in the highway nine feet from its north boundary incommoded the public. At least the jury so found upon the overwhelming testimony to that effect. This, therefore, made the defendant a trespasser, a violator of the law and in no position to complain that the act did not constitute negligence. "An obstruction that appears to interfere with the public's rights, or to endanger the safety of travelers, or annoy those coming in contract with it at a place on the right-of-way of a public road is an obstruction thereof, and indictable as a nuisance at common law if not under the statute." State v. Campbell, 80 Mo.App. 110; R. S. 1909, secs. 3326, 10533; Wright v. City of Doniphan, 169 Mo. 601. The proof was ample, full, complete and uncontradicted that the pole was not only nine feet within the highway, but was set in a position at the turn of the road so that persons approaching from the south could not ascertain that the pole was out in the highway until one was making or had made the turn. Numerous persons traveling upon this highway had found this to be true to their sorrow. Furthermore, plaintiff's car was at all times in the traveled roadway, which was "right up to the pole." Tetherow v. St. Jos. & Des Moines Ry., 98 Mo. 74. There is no question in this case that the act of defendant in placing the pole in the traveled roadway was the actionable proximate cause of the injury. Hull v. City of Kansas, 54 Mo. 598; Ballentine v. Kansas City, 126 Mo.App. 130; Bassett v. City of St. Joseph, 53 Mo. 290; Vogelgesang v. City of St. Louis, 139 Mo. 127; Harrison v. K. C. Electric Light Co., 195 Mo. 623; Benjamin v. Met. Street Railway Co., 133 Mo. 274; Buckner v. Horse & Mule Co., 221 Mo. 710. (2) Instruction No. 1 on behalf of plaintiff correctly stated the degree of care required of plaintiff. The rule requiring a person operating an automobile on public roads to use "the highest degree of care that a very careful person would use, under like or similar circumstances," cannot avail the defendant in this case. The defendant is not suing for injury to its property. Defendant had imposed an unlawful obstruction in the highway. It therefore cannot seek to absolve itself from damages for its wrongful or unlawful act because the statute enjoined upon plaintiff the highest degree of care toward persons properly using such highway. No other person, than plaintiff and his family, were "on or traveling over the highway." Neither plaintiff, nor any other person, could observe, on account of the deceptive perspective, that there was a pole in the road. What reason for plaintiff to be nerved to the high tension required in a crowded highway? The statute required no such degree of care. Plaintiff is only obligated under the statute to the use of such high degree of care in order "to prevent injury or death to persons on, or traveling over, upon or across such public roads, streets, avenues, alleys, highways or places much used for travel." Laws 1911, p. 330. The degree of care required of plaintiff in order for plaintiff not to be guilty of contributory negligence has always been the degree of care that an ordinarily prudent person would use under like or similar circumstances. Floweree v. Thornberry, 183 S.W. 359; Smith v. Union Ry. Co., 61 Mo. 588; Myers v. C., R. I. & P. Ry. Co., 103 Mo.App. 268.
SMALL, C. Brown and Ragland, CC., concur. Blair, P. J., concurs in result.
Appeal from the Circuit Court of Buchanan County. Plaintiff sued defendant for personal injuries sustained by him while driving a Ford automobile which, in making a turn in the road to the west, skidded against a telephone pole of defendant near the north edge of the road. It was in the country near Saxton, Buchanan County. The verdict and judgment were for plaintiff in the sum of ten thousand dollars. Defendant duly appealed to this court.
Plaintiff testified on direct-examination: That he lived near Easton, east of Saxton, Missouri. That on the morning of the 25th of February, 1917, he started in his Ford automobile to go to St. Joseph. He had had the car twenty-three days. It was his first car. He had driven every day except one. Had driven a Ford car, but not very much, before he bought this car. On this morning, he was driving, and his wife and three children were with him in the car. He had to make a turn to the west in the road, about two miles east of Saxton. As he approached this turn he was going north. The road going north, from fence to fence, was about forty-five or fifty feet wide, and about the same running west. There was a concrete culvert running diagonally from the southwest to the northeast corners of the turn in the road. There was a line of telephone poles running along the south side of the east-and-west road, and the west side of the north-and-south road. There was also a guy telephone pole on the north side of the east-and-west road about eight or nine feet south of the fence. The concrete culvert was thirty-eight feet long. There were ditches leading into it from the west on the north and south sides of the road. This guy telephone pole was twenty feet north of the edge of the ditch on the south side of the road. The ditch at this point was something like five or six feet deep. On the north side opposite, the ditch was not over a foot or two deep right by the pole. The ditch was four or five feet wide. The ditches got deeper as they went east towards the ends of the culvert. The road was higher in the center than at the sides, so that the water would run off. On the day in question, the road was dry, and outside of a few clods, it was smooth. The clods were little and round -- not very big -- on the side of the road. There was a little grass right down by the pole, between it and the center of the road. The road was pretty good right in the center. As plaintiff came north up to the turn he turned to his left to start west. Previous to making the turn, he had not noticed this telephone guy pole setting out in the roadway, until just before he hit it. He never paid any attention before that to the telephone poles along the road. Coming up from the south you could not tell that this pole was out there "to save your neck" until you turned the corner. It looked like it was right in line with the others coming south. He got the car turned and it kept skidding along on some clods, and he could not get the wheels to take (hold) when they ought to, and the first thing he knew, the right front wheel struck the (guy) telephone pole and tipped the car over and threw them out. It bursted an inner tube and the car turned over to the north. When it hit, the car just scooted sideways and tipped over against the pole. He was running about twelve or fifteen miles an hour when he hit the pole, but it was "kind of skidding along." He was thrown out to the north of the pole. His wife and children were also thrown out and injured at the same time. His leg was broken. He never recovered the use of his foot, which flaps down on the floor when he steps and causes him to catch his toes and stumble if he is not very careful.
On cross-examination, plaintiff testified: That he had driven his car on each of the...
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