Mengel v. St. Louis

• Decision Date: 14 December 1937
• Docket Number: No. 34289.,34289.
• Citation: 111 S.W.2d 5
• Court: Missouri Supreme Court
• Parties: JOSEPHINE MENGEL, Appellant, v. CITY OF ST. LOUIS.

111 S.W.2d 5

JOSEPHINE MENGEL, Appellant, v. CITY OF ST. LOUIS.

No. 34289.

Supreme Court of Missouri.

Division One, December 14, 1937.

Appeal from Circuit Court of City of St. Louis. — Hon. Erwin G. Ossing, Judge.

REVERSED AND REMANDED.

J.M. Brown and Barker, Durham & Drury for appellant.

The instruction was in substance intended as a mere lecture on the duty of the jury to the city. Wolfson v. Cohen, 55 S.W. (2d) 681. It is not proper practice to charge that certain evidence is or is not proof of an ultimate fact in the case. Steinwender v. Creath, 44 Mo. App. 356. The instruction, by purpose or error, referred to plaintiff as an "Insured party." Even if a mere typographical error, it is ground for reversal. Gillette v. Laederich, 242 S.W. 114; Morton v. Heidorn, 135 Mo. 608; Bowen v. Epperson, 136 Mo. App. 571; Garven v. Ry. Co., 100 Mo. App. 620. The instruction erroneously informed the jury that if the defendant "Exercised ordinary care to place a warning signal upon the obstruction," plaintiff could not recover. It ignored the duty of the city properly to light the obstruction and to maintain such light. The instruction, therefore, misdirected the jury and such misdirection directly conflicted with and destroyed plaintiff's Instruction 3. Nagy v. St. L. Car Co., 37 S.W. (2d) 513; Christner v. C.R.I. & P. Ry., 64 S.W. (2d) 752.

Edgar H. Wayman and Jerome Simon for respondent.

(1) The verdict was for the right party. Defendant's instruction in the nature of a demurrer should have been given because in placing and maintaining the electric signal for the regulation of traffic the city was in the exercise of its governmental function and hence not liable in damages for negligence. Auslander v. St. Louis, 332 Mo. 145, 56 S.W. (2d) 778; Prewitt v. St. Joseph, 70 S.W. (2d) 916. (2) Defendant's Instruction 8 correctly stated the law and was proper. It did not constitute reversible error. Carvin v. St. Louis, 151 Mo. 334; Cordray v. Brookfield, 65 S.W. (2d) 938. (a) A mere clerical error is not grounds for reversal (where the rights of the complaining party were not affected). Sec. 1062, R.S. 1929; Foster v. United Rys. Co., 183 Mo. App. 606; Shinn v. Railroad Co., 248 Mo. 173; Campbell v. Springfield Traction Co., 178 Mo. App. 520; Shartel v. St. Joseph, 104 Mo. 115; Farmers Bank v. Harris, 250 S.W. 946. (b) The part of the instruction that told the jury that if the defendant "exercised ordinary care to place a warning signal upon the obstruction" plaintiff could not recover, was but the converse of plaintiff's Instruction 2, and plaintiff will not be heard to complain of self-invited error, if error there be. McGonigle v. Daugherty, 71 Mo. 259; Hall v. St. Joseph Water Co., 48 Mo. App. 356; Lange v. Mo. Pac. Ry. Co., 208 Mo. 458; Phelps v. Salisbury, 161 Mo. 1; Olfermann v. Union Depot Ry. Co., 125 Mo. 408; Thorpe v. Mo. Pac. Ry. Co., 89 Mo. 650; Hazell v. Bank of Tipton, 95 Mo. 60; Whitmore v. Supreme Lodge Knights & Ladies of Honor, 100 Mo. 36.

FERGUSON, C.

Plaintiff was injured when an automobile, operated by her son-in-law, in which she was riding as a guest, collided with a concrete block or slab located "midway in the intersection" of two of the public streets of the city of St. Louis. She brought this action against the city for damages for the injuries so sustained. The petition alleges and prays damages in the sum of $25,000. The action was filed, and trial had, in the Circuit Court of the City of St. Louis. The verdict of the jury and the judgment of the court, in accordance therewith, was for the defendant, and plaintiff has appealed.

Plaintiff assigns error in certain instructions given on the part of defendant but, as respondent here, defendant contends that its instruction in the nature of a demurrer to the evidence, offered at the close of all the evidence, should have been given, that plaintiff did not make a submissible case, and that therefore error, if any, in instructions is immaterial. Necessarily we first consider this contention.

The parties have agreed upon, and jointly approved, a short form of a bill of exceptions setting forth the facts, which they agree, the evidence tends to prove. This, we are advised, is done pursuant to our Rule 6, which provides: "To enable this court to review the action of the trial court in giving and refusing instructions it shall not be necessary to set out the evidence in the bill of exceptions; but it shall be sufficient to state that there was evidence tending to prove the particular fact or facts. If the parties disagree as to what fact or facts the evidence tends to prove, then the testimony of the witnesses shall be stated in narrative form, avoiding repetition and omitting immaterial matter."

[1] It is stated that there was evidence tending to prove the following facts. "That on the morning of August 3, 1932, at about the hour of one A.M., the plaintiff, a woman about sixty-three years of age, was seated in the rear seat of an automobile sedan being operated by one Maurice Hyman, her son-in-law, westwardly along Page Boulevard in St. Louis and, approaching and passing the intersection of Page Boulevard with Newstead Avenue, both being improved open and public streets of the city of St. Louis. That the automobile in which plaintiff was seated collided with a concrete slab or block of concrete about four or five feet square and about eighteen inches high, located midway in the intersection, as a result of which collision plaintiff suffered substantial injuries."

"It was conceded that the concrete slab constituted the base whereon had previously been located a light standard, or traffic signal. That during the day or evening of August first an automobile had collided with the light standard, knocking it down and destroying it. That subsequent to the first accident, and during the night of August first, or the day of August second, the damaged light standard had been removed by the city, leaving the concrete base in the intersection."

"There was evidence offered on behalf of the city tending to show that on the night and at the time of the accident to plaintiff the obstruction was properly lighted and of such visibility as reasonably to warn traffic of the presence of the obstruction, and evidence offered on behalf of the plaintiff tending to show that the obstruction was not properly lighted, by reason of which it constituted an obstruction to traffic.

"Page Boulevard is a street sixty feet wide and accommodates several streams of traffic. There was conflicting evidence as to the presence of other traffic at the time and scene of the accident.

"On behalf of the defendant, there was evidence tending to show that at the time of the accident to plaintiff the automobile occupied by her was being operated at a speed of about forty miles per hour and in excess of thirty miles per hour prescribed by ordinance, and that the driver could have seen the obstruction had he kept a proper lookout. On behalf of the plaintiff there was evidence tending to prove that the car was being operated at a lawful rate of speed and that the collision was not due to negligence on the part of the driver of the automobile."

The petition alleges, that at the date and time of the collision the slab or block of concrete constituted "an obstruction in the center of the intersection;" that "it was dark at said intersection, and there were no lights on" said concrete block or slab "or other warning ... and that plaintiff had no knowledge, notice or warning that said obstruction was in the street;" that "defendant knew, or, by the exercise of ordinary care, could have known" that the concrete block or slab "was in the center of the intersection and was likely to be run into by motorists, especially at night, in time, before plaintiff was injured, by the exercise of ordinary care, to have placed warning lights thereon at night ... or otherwise have given reasonable warning or notice to motorists of the presence of the concrete slab in the street," but "negligently failed to provide reasonable and proper lights on, at or near said obstruction at night, or to reasonably warn motorists of the presence of said obstruction in the intersection;" and that the collision and plaintiff's injuries "were directly due to and caused by the negligence of defendant" in the respects stated. The answer was a general denial and a plea of contributory negligence on the part of plaintiff in that by the "exercise of ordinary care for her own safety" she could have discovered "the existence of the alleged concrete slab in the intersection" in time to thereafter have "warned the driver of the automobile in which she was riding" thereof and "should have cautioned said driver ... to swerve his automobile and use his brakes," etc., "so as to avoid" the collision.

It will be noted that "it was conceded that the concrete slab ... four or five feet square and about 18 inches high ... midway in the intersection ... constituted the base whereon had previously been located a light standard, or traffic signal." This collision occurred in the nighttime, at about one o'clock A.M., August 3. The light standard which had stood on this concrete base was struck and knocked down by an automobile "the night of August 1st or the day of August 2nd;" and thereupon ("on the night of August 1st or the day of August 2nd") "the damaged light standard had been removed by the city leaving the concrete base in the intersection." The respondent city now takes the position that a submissible case was not made and that its refused instruction in the nature of a demurrer to the evidence should have been given "because in placing and maintaining the signal for the regulation of traffic the city was in the exercise of its governmental function," citing and relying upon Auslander v. City of St. Louis (en banc), 332 Mo. 145, 56 S.W. (2d) 778, and Prewitt v. City of St. Joseph, 334 Mo. 1228, 70 S.W. (2d) 916.

The Auslander ca...