Melican v. Whitlow Const. Co.

• Decision Date: 09 October 1925
• Docket Number: No. 25014.,25014.
• Parties: MELICAN v. WHITLOW CONST. CO.
• Court: Missouri Supreme Court

278 S.W. 361

MELICAN v. WHITLOW CONST. CO.

No. 25014.

Supreme Court of Missouri, Division No. 1.

October 9, 1925.

Motion for Rehearing Denied December 22, 1925.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by James Melican against the Whitlow Construction Company. Judgment foe plaintiff, and defendant appeals. Affirmed.

Clarence T. Case, Victor J. Miller, and D. W. Voyles, all of St. Louis, for appellant.

Mark D. Eagleton, of St. Louis, for respondent.

LINDSAY, C.

This is an action for personal injuries. The plaintiff was riding in an automobile as the guest of Lawrence C. Doyle, who was driving a Dodge touring car. Plaintiff sat with him on the front seat. There were no other passengers. They were driving westward in St. Louis county, on the night of March 11, 1922, on what is spoken of as the Gravois road, a much-traveled thoroughfare. Recently before that time the defendant construction company had undertaken the construction of a culvert across the road, and had cut entirely across it a trench about 3 feet in depth and in width. The road sloped downward considerably toward the trench on each side of it. The road was required to be kept open for traffic during' the period of construction, and it appears that defendant cut the trench first across the south part or half of the road, leaving the north half for traffic; then laid boards or planks over the portion cut on the south part, for the passage of vehicles, and next proceeded to cut the north half of the trench.

It was a surfaced road about 20 feet in width, and there was some space on either side of the surfacing. The trench had been cut, the planks put over the south part of it, and the north part left uncovered, on the night in question, when, at about 10:30 o'clock, Doyle and the plaintiff, driving westward along the north part of the road, approached the place. For persons driving eastward, and along the south or right side of the road going east, the plank covering over the trench was in line. For persons driving westward, as were Doyle and the plaintiff, and upon the north part of the road, it was necessary, upon approaching the place, to turn to the south side of the road in order to get on the plank covering over the trench. There was some dirt thrown out from the trench, and lying near it. The night was misty and dark. Neither Doyle nor plaintiff had been along the road since the construction work had begun, nor knew of the situation, and neither of them, in approaching the place, saw the trench in time to turn the automobile soon enough, or sufficiently, for its right wheels to get on the plank covering, and pass over the trench in safety. The automobile did go over to a point some 20 feet west of the trench, but in a partially wrecked condition, and plaintiff received in the shock injuries which made him unconscious, and on account of which he sues.

The chief issues upon the facts were on the question of the care exercised by plaintiff and Doyle under these circumstances, and also, particularly, the number, position, and adequacy of the lights about the place as a warning of its dangers.

The petition contains several specifications of acts done or omitted by defendant rendering the place dangerous to travelers, who, it is alleged, defendant knew, or by the exercise of ordinary care could have known, were likely to pass that way at night.

It charged negligence in making and permitting the excavation, and in negligently permitting dirt and other objects to remain in the roadway, and also negligence in failure to use ordinary care to provide a reasonably safe covering for the excavation, so as to allow travel over the roadway in safety. The more important specification, however, was the fourth, wherein plaintiffs charged that, although defendant knew, or by the exercise of ordinary care could have known that persons would likely attempt to pass the excavation in the nighttime, "it did negligently and carelessly fail and omit to properly guard or protect said excavation and obstructions, and it negligently and carelessly failed and omitted to place an adequate or safe amount of signal lights in and around said obstruction and excavation, so that persons approaching the same would have been warned of the presence thereof in time to have avoided contact therewith, or injury in attempting to pass thereabouts." The plaintiff's instruction authorizing recovery was founded upon negligence thus alleged.

The fifth specification was that defendant, knowing of the dangers, negligently failed to place any person in charge during the nighttime to warn travelers or drivers of vehicles, so that such person could have been properly charged with the duty of placing "a sufficient and adequate amount of signal lights in and around said excavation."

The sixth charged that defendant negligently placed lights so as to confuse and mislead travelers or drivers of vehicles, in that it placed lights on the open side of the road, and failed to place any lights on the dangerous and obstructed side. The answer, after a general denial, charged that the injuries of plaintiff, if any, were directly contributed to or caused by his own carelessness and negligence, in that he permitted the driver of the automobile to drive at a speed of 15 miles an hour, a speed excessive and dangerous under the circumstances, and in that plaintiff saw an excavation when yet 15 feet away, but failed to call the attention of the driver to it, and that, although plaintiff saw, or could have seen, signal lights where the construction work was in progress, he failed to protest against approaching the place at a speed of 15 miles an hour.

Defendant's demurrer to the evidence, offered at the close of plaintiff's case, was overruled, as was also its demurrer offered the close of the whole case. There are several errors assigned, but the brief for defendant is mainly devoted to the contention (1) that plaintiff failed to sustain the burden of proof as to the alleged negligence of defendant, and (2) that plaintiff, as a of law, was guilty of negligence barring a recovery.

I. The issue embodied in these contentions must be determined upon a consideration of all the evidence in the case. There is the contention in the reply brief for defendant that, because its demurrer, at the close of the case, was refused, the question is to be determined upon the evidence given for plaintiff, and that in the state of the record here defendant did not waive its rights under the first demurrer by putting in its evidence, since, it is urged, its demurrer at the close of the whole case was also overruled. In support of this contention, utterances in Kenefick-Hammond Co. v. Fire Insurance Society, Mo. 307, 103 S. W. 957, Jennie Geninazza v. R. Leonori A. & S. Co. (Mo. Sup.) 252 S. W. 419, and Weber v. Strobel, 236 Mo. 660, 139 S. W. 188, are cited. What was said those cases does not uphold defendant's contention. The established rule is that, when a defendant does not stand upon his demurrer offered at the close of the plaintiff's case, but proceeds and introduces his own evidence, he takes the chance of aiding the plaintiff's case, and the issue whether has made a case to go to the jury is to be determined in the light of all the evidence.

In Bowen v. C., B. & K. C. Railway Co., 95 Mo. loc. cit. 275, 8 S. W. 232, the rule was stated by Judge Black as follows:

"If, after making such a demurrer, the defendant puts in his evidence, and the evidence as a whole entitles the plaintiff to go to the jury, the demurrer to the plaintiff's evidence will not be considered here. This is true though the demurrer should have been sustained, as the case stood, when it was interposed."

That this is the rule is shown by the holding in many subsequent cases: Cowan v. Young, 282 Mo. loc. cit. 46, 220 S. W. 869; State v. Jackson, 283 Mo. loc. cit. 24, 222 S. W. 746; Pullen v. Hart, 293 Mo. loc. cit. 71-72, 238 S. W. 437; Burton v. Holman, 288 Mo, 79, 231 S. W. 630; Canty v. Halpin, 294 Mo. 96, 242 S. W. 94.

On the Saturday night in question Doyle and the plaintiff drove out of the city of St. Louis west on Gravois avenue. The place where the accident occurred was a short distance west of the city limits.

The plaintiff testified that the automobile had headlights which would throw a beam of light 25 or 30 feet, and of the usual and ordinary brilliance, and that, according to his observation as they drove out Gravois avenue, they could see 25 or 30 feet ahead. The night was dark and somewhat foggy. He said that at a point where they were goat down hill they came on top of an open hole, or ditch, in the road, which they saw when they were 10 or 15 feet from it; that Doyle made an attempt to avoid the ditch; that plaintiff said nothing to him, and the automobile struck this hole, and plaintiff remembered nothing until the next day, when he regained consciousness at about noon in a hospital. He said the automobile was traveling at not more than 15 miles an hour as they approached the place; that he did not see a light; that he was keeping watch of the roadway; and that he and Doyle were not engaged in conversation at the time. Again, he said that he and Doyle saw the excavation at the same time; that Doyle made a swerve of the car, trying to get on the plank crossing and trying to slow down, but he could not say that he noticed any slowing down of the car. He said that it was the first time he had ridden in this car, and, while in the city, he had no chance to estimate, and did not notice, the distance the lights would penetrate, but that they were in good condition as far as he knew, seeming to him to throw the usual light that a headlight would throw; that, with the mist and fog on that night on Gravois avenue, he could see approximately 25 or 30 feet.

Doyle testified that he had been driving an automobile about six years; that they went west on Gravois avenue at 10 to 15 miles an hour; that in...