Lavinge v. City of Jefferson

• Decision Date: 02 November 1953
• Docket Number: No. 21898,21898
• Citation: 262 S.W.2d 60
• Parties: LAVINGE v. CITY OF JEFFERSON.
• Court: Missouri Court of Appeals

Page 60

262 S.W.2d 60

LAVINGE v. CITY OF JEFFERSON.

No. 21898.

Kansas City Court of Appeals, Missouri.

Nov. 2, 1953.

Lauf & Bond, H. P. Lauf, John O. Bond, and John W. Goodin, Jefferson City, for appellant.

Curtis J. Quimby, Jefferson City, for respondent.

DEW, Judge.

The petition in this case seeks damages for personal injuries alleged to have been sustained by the plaintiff as a result of a collision of an automobile in which she was a passenger, with a concrete wall on private premises a few feet outside of a public street in Jefferson City. The verdict and judgment were in favor of the plaintiff in the sum of $5,000 from which the defendant has appealed. The sole question on appeal is whether the petition states a cause of action.

Defendant asserts that the failure of a petition to state a cause of action can be raised for the first time on appeal; that such failure deprives the court of jurisdiction to render a valid judgment on such petition; that the petition is based on a claim of negligence on the part of the city in failing to erect and maintain reasonable barriers or other safety devices to protect occupants of motor vehicles using the streets against dangerous conditions thereof known to it; that such safety measures are a governmental function in the performance of which a city is not liable for negligence; that a city is not liable for defects outside the traveled portion of its streets.

The pertinent facts alleged in the petition are that Swifts Highway is an eastwest public street in that city; that throughout its course of six-tenths of a mile east of the point in question Swifts Highway is a heavily traveled thoroughfare, maintained by the city, 25 feet wide, level and paved with asphalt and with curbings in place; that in the southwestern part of the city Swifts Highway makes an abrupt turn of 90 degrees to the left or south, at which point it is 18 feet wide, without curbings; that the said turning point is also the southern terminus of Myrtle Avenue, a graveled paved street running northward therefrom; that Swifts Highway, after its turn to the south of the T-formed intersection described, is concealed from the view of a motorist approaching from the east by a residence and elevated lawn; that the view of Myrtle Avenue north of the intersection is concealed by a four-foot stone wall and high cedar trees along the right side of Swifts Highway approaching the intersection; that such conditions at nighttime present the appearance of a continuation of Swifts Highway on westward from the intersection; that at the western edge of the T-intersection, there is a lawn of an abutting residence property which gradually slopes westward therefrom and at night the trees and shrubbery thereon do not indicate to a motorist that Swifts Highway does not continue westward from the said crossing; that 'a few feet' beyond the western edge of the highway at the intersection, there is situated a low rock wall about a foot high and a foot thick, obscured at the time involved by grass and weeds at the west edge of the street; that beyond this wall about 30 feet is an abandoned swimming pool on the private property mentioned; that the abrupt turn in Swifts Highway and the low concealed wall and other conditions above described constitute a dangerous condition and renders the street unsafe for occupants of motor vehicles who use the same without notice of such conditions and obstruction, affording them no opportunity to perceive the abrupt turn, slacken speed, or to learn of the concealed low rock wall; that the defendant knew, or in the exercise of ordinary care should have known, of such hazardous conditions and was 'negligent in failing to erect and maintain reasonable barriers or to take such other similar measures as might be necessary to protect the occupants of motor vehicles in the use of the street'.

The petition proceeds to allege that on the date in question at about 1:00 a. m. she was a passenger in an automobile operated by Paul Wegman, proceeding westerly on Swifts Highway; said automobile proceeded straight across the intersection described and struck the low rock wall near the westerly edge of that street with such force as to render the car out of control, causing the car to proceed downward into and upon the law of the abutting property with sufficient force to break another stone wall around an abandoned swimming pool, and injuring the plaintiff as set forth. It is averred that the injuries so claimed were sustained as a direct result of the collision, which directly and proximately resulted from the negligence of the defendant as above quoted.

It is true that the sufficiency of the petition to state a cause of action was not challenged before the first trial of this case. The judgment for plaintiff therein was set aside on her motion and a new trial granted on the issue of damages only, resulting in the present verdict and judgment. At no time during the proceedings in the trial court did defendant raise the question of the sufficiency of the petition to state a cause of action and it is raised here for the first time. Under such circumstances every reasonable intendment and implication should be indulged in favor of the petition in the determination of its failure wholly to state a cause of action. State ex rel. Schroeder & Tremayne v. Haid, 328 Mo. 807, 810, 41 S.W.2d 789; Nahn-Heberer Realty Co. v. Schrader, Mo.App., 89 S.W.2d 142. If the petition wholly fails to state a cause of action, the question can be raised for the first time on appeal. State ex rel. Fletcher v. Blair, 352 Mo. 476, 482, 178 S.W.2d 322.

We consider next defendant's contention that the negligence complained of in the petition is such as pertains only to direction of traffic by the city, and that such activity of a municipality is a governmental function in the performance of which it is not liable for negligence. The pleaded negligence specifically includes the failure to 'erect and maintain barricades or to take such other similar measures as might be...