Leach v. City of St. Joseph

• Decision Date: 06 December 1943
• Docket Number: 38671
• Citation: 176 S.W.2d 468,352 Mo. 193
• Parties: Earl R. Leach v. City of St. Joseph, Appellant
• Court: Missouri Supreme Court

176 S.W.2d 468

352 Mo. 193

Earl R. Leach v. City of St. Joseph, Appellant

No. 38671

Supreme Court of Missouri

December 6, 1943

Rehearing Denied January 3, 1944.

Appeal from Buchanan Circuit Court; Hon. Sam Wilcox, Judge.

Affirmed and remanded.

Homer C. King, City Counselor, and Bart M. Lockwood Assistant City Counselor, for appellant.

(1) The trial court erred in refusing to give the demurrer Instruction B, offered by defendant at the close of plaintiff's evidence in chief for the reason that the negligence of the driver of the car and the contributory negligence of the plaintiff himself, shown by plaintiff's evidence bars plaintiff's right to recover. Bean v City of Moberly, 169 S.W.2d 393 and cases cited under Point (2). (2) The trial court erred in refusing to give the demurrer, Instruction C offered by defendant at the close of all the evidence because the evidence showed plaintiff guilty of contributory negligence as a matter of law in permitting himself to be driven into a lighted barricade which he knew existed and could and should have avoided colliding with by the exercise of ordinary care for his own safety. Leapard v. K.C. Railways Co., 214 S.W. 268; Welch v. McGowan, 262 Mo. 709, 172 S.W. 18; Sheffer v. Schmid, 26 S.W.2d 592; Schweig v. Wells, 26 S.W.2d 851; Waldmann v. Schrainka Const. Co., 233 S.W. 242; Baranovic v. Moreno, 114 S.W.2d 1043; Rohman v. Richmond Heights, 135 S.W.2d 378; Eisele v. Kansas City, 237 S.W. 873; Wheat v. St. Louis, 78 S.W. 790; Jackson v. Kansas City, 79 S.W. 1174; 7 McQuillin, Mun. Corps. (2 Ed.), 269-271-275; 3 Elliott, Railroads, sec. 1174; Ryan v. Kansas City, 232 Mo. 471, 134 S.W. 653. (3) The failure on the part of plaintiff to see and avoid colliding with the barricade and warning lights constituted "contributory negligence" as a matter of law, barring recovery. Farris v. Thompson, 168 S.W.2d 439; Brooks v. Ste. Genevieve, 164 S.W.2d 164; Carter v. Wells, 40 S.W.2d 725; Leapard v. K.C. Rys. Co., 214 S.W. 268; Bean v. City of Moberly, 169 S.W.2d 393; And authorities cited under Point (2). (4) It was contributory negligence per se to collide with a barricade after knowing the barricade was there. Baranovic v. Moreno, 114 S.W.2d 1043; Waldmann v. Schrainka Const. Co., 233 S.W. 242; Rohman v. Richmond Heights, 135 S.W.2d 378; O'Neill v. City, 239 S.W. 94; Schawe v. Leyendecker, 269 S.W. 864. (5) The trial court erred in refusing to give the special demurrer Instruction D offered by defendant at the close of all of the evidence because under the evidence, plaintiff was not entitled to maintain this action against the City alone. Sec. 6576, R.S. 1939. (6) Instruction H is a correct statement of the law applicable to the evidence. It was not prejudicial, therefore the trial court erred in granting a new trial thereon. Cordray v. City of Brookfield, 334 Mo. 249, 65 S.W.2d 938; Stephens v. City of Eldorado Springs, 185 Mo.App. 464, 171 S.W 657; 3 Raymond on Inst., p. 420, sec. 8166; 4 Randall on Inst., p. 4309, sec. 3981 (5). (7) A defendant's instruction that states a correct rule of law applicable to the evidence should not be ground for a new trial even if it does not contain all of the applicable law. Borgstede v. Waldbauer, 88 S.W.2d 373; Mendenhall v. Neyer, 149 S.W.2d 366; Doherty v. St. Louis Butter Co., 98 S.W.2d 742; Stanich v. W.U. Tel. Co., 153 S.W.2d 54; Jones v. Cent. States Oil Co., 164 S.W.2d 914. (8) Plaintiff's purported motion for a new trial is insufficient because it specifies no grounds for a new trial as required by statute. Sec. 964, R.S. 1939; Nelson v. Perky Bros. T. & S. Co., 151 S.W.2d 476; Polski v. St. Louis, 264 Mo. 458, 175 S.W. 197; Raifeson v. Young, 183 Mo.App. 508, 167 S.W. 648; Artz v. Bauman, 71 S.W.2d 795; Sheridan v. St. Joseph, 110 S.W.2d 371; Whitfield v. Union El. Co., 271 S.W. 52; King v. K.C. Life Ins. Co., 164 S.W.2d 458. (9) Jurisdiction of this appeal is in the Supreme Court. Johnson v. Ramming, 340 Mo. 311, 100 S.W.2d 466; 2 Houts Pleading & Practice, 228, sec. 483.

W. J. Boyd and Miles Elliott for respondent.

(1) The trial court properly refused to give Instruction B, in the nature of a demurrer, requested by defendant City at the close of plaintiff's evidence. Bean v. City of Moberly, 169 S.W.2d 393. (2) Plaintiff was not guilty of contributory negligence as a matter of law. Bean v. City of Moberly, supra. (3) The trial court properly refused to give Instruction D, which defendant City requested on the ground that plaintiff could not maintain his action against the City without joining the driver of the automobile as a defendant. Sec. 6576, R.S. 1939. (4) The trial court properly ruled that Instruction H, given at the request of defendant City was prejudicially erroneous. It was a roving commission. Schide v. Gottschick, 43 S.W.2d 777; Bobos v. Packing Co., 296 S.W. 157; Lunsford v. Produce Co., 260 S.W. 781; Clason v. Lenz, 61 S.W.2d 727; Watts v. Moussette, 85 S.W.2d 487; Pearrow v. Thompson, 121 S.W.2d 811; Benjamin v. Railroad, 245 Mo. 598, 151 S.W. 91. (5) It did not require the finding of any causal connection between plaintiff's negligence (if any) and his injury, as a condition to a finding against plaintiff on the ground of contributory negligence. Conrad v. Hamra, 253 S.W. 808 Trappmeyer v. Ryckoff, 45 S.W.2d 890; Hires v. Letts-Melick, 296 S.W. 408; Bobos v. Krey Packing Co., supra; Menard v. Goltra, 40 S.W.2d 1053; Rentfrow v. Thompson, 156 S.W.2d 700. (6) Instruction F, given for defendant, was prejudicially erroneous and would have required the granting of a new trial. It was highly misleading, in that it told the jury, in effect, that it was plaintiff's duty, in the exercise of ordinary care, to see that the driver of the automobile did not drive into the barricade in any event, without regard to whether the driver was negligent and without regard to whether the City was negligent in maintaining a condition in the nature of a trap in its street, and in that it thereby placed on plaintiff the duty to exercise greater care than the law required of him. Buehler v. Festus Merc. Co., 119 S.W.2d 961; Annin v. Jackson, 100 S.W.2d 872. (7) It was a roving commission as to contributory negligence. See authorities cited under Point (4). (8) Plaintiff's motion for new trial was sufficiently specific to preserve, for review, error in defendant's instructions. Wampler v. Railway, 269 Mo. 464, 190 S.W. 908; Bobos v. Krey Packing Co., 296 S.W. 157; Beaber v. Kurn, 91 S.W.2d 70.

OPINION

Gantt, J.

Action for personal injury damages in the sum of $ 30,000. In substance it is alleged that the defendant city negligently failed to barricade and maintain red lights in front of a disturbed condition of a street as a warning to travelers of the existence of said condition, and that said failure caused injury to plaintiff, who was traveling on the street as a guest in an automobile. The answer was a general denial with affirmative pleas, including contributory negligence of the plaintiff. The verdict was for the city.

The court ruled that Instruction "H", given at the request of defendant, was erroneous and for that reason sustained the motion for a new trial. Defendant appealed. It contends that the court should have directed a verdict for the defendant on the issue of contributory negligence. There was evidence tending to show facts as follows:

The main street from South St. Joseph to the business section of the city is Sixth Street, which is sixty feet in width. At the time of plaintiff's injury and before, the car tracks were being moved from the center of the street. Generally the traveling public used twenty feet on the sides of the street. Travelers were warned of a disturbed condition by barricades and warning lights. Plaintiff and Harry Kidd resided in South St. Joseph. They knew of the disturbed condition, the barricades and the warning lights. At 7:30 P.M. on March 10 1938, plaintiff, as a guest, traveled north on the east side of Sixth Street, in Kidd's automobile, from South St. Joseph to the business section of the city. The automobile was owned and driven by Kidd. Generally the east twenty feet of the street served traffic to and from the business section. In traveling northward plaintiff and Kidd casually noticed the warning lights and the disturbed condition of the center of the street. On arriving in the business section and after Kidd transacted his business, he drove the automobile southward, on the west side of the street, in returning to South St. Joseph. Plaintiff was sitting beside him on the front seat. On reaching a point about a half block north of Atchison Street, which intersects Sixth Street, they noticed that all of the west side of the street at that point was barricaded and travelers warned by red lights in front of the barricade. Kidd then drove to the east side of the street. At that time the plaintiff remarked to Kidd that "the condition of the street was confusing which way to drive". The intersection of Sixth and Atchison Streets was not disturbed by the removal of the tracks. On reaching the east side of the intersection Kidd drove the automobile southward. At that time both plaintiff and Kidd saw a red light in front of them, which was located on the east side of the center twenty feet of the street and twenty to twenty-five feet south of the south line of the intersection. Kidd continued to drive the automobile at twenty-five miles per hour. As the automobile passed over the south line of the intersection, its wheel or wheels ran into a groove or grooves left by the removal of the tracks north of the barricade. Instantly Kidd applied the brakes, which failed to operate as usual because one of the tires "blew out", thereby interfering with the effort to stop the automobile and avoid a collision with the...