Miller v. Harrison Const. Co.

• Decision Date: 27 June 1927
• Docket Number: No. 15442.,15442.
• Citation: 298 S.W. 259
• Parties: MILLER v. HARRISON CONST. CO.
• Court: Missouri Court of Appeals

298 S.W. 259

MILLER v. HARRISON CONST. CO.

No. 15442.

Kansas City Court of Appeals, Missouri.

June 27, 1927.

Rehearing Denied July 11, 1927.

Certiorari Denied by Supreme Court September 27, 1927.

Appeal from Circuit Court, Grundy County; L. B. Woods, Judge.

"Not to be officially published."

Action by Maggie L. Miller against the Harrison Construction Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J. W. Rogers, of Kansas City, and L. A. Warden, of Trenton, for appellant.

George H. Hubbell and Platt Hubbell, both of Trenton, for respondent.

FRANK, C.

Defendant appeals from a judgment of $1,500 recovered by plaintiff against the defendant for alleged personal injuries caused by the negligence of defendant.

The evidence tends to show that defendant, Harrison Construction Company, is a corporation organized under the laws of the state of Iowa, and at the time in question, and for some time prior thereto, was engaged in the work of road construction in the state of Missouri. In the year 1924, defendant, under contract with the state highway department, paved state highway No. 6, a public highway extending west from the city of Trenton, Mo. This highway was about 60 feet wide, and the concrete paving 18 feet in width was laid in the center thereof. During the time the road was being paved, it was closed to traffic. After the concrete work on this road had been completed, it was opened to general public traffic and travel on November 27, 1924. At this time the work of grading the dirt shoulders on either side of the pavement had not been completed, and for this reason the work had not been accepted by the highway department and final payment had not been made to the contractor. The city of Trenton owned several acres of land located about 200 yards west of the corporate limits of the city and immediately north of and adjoining state highway No. 6, on which was located its water filtering plant and the buildings and reservoir used in connection therewith. There is a paved roadway leading from said reservoir and buildings south across the city's property to the right of way line of state highway No. 6, intersecting said right of way line at a point about 200 yards west of the city limits. The city, desiring to connect the paved roadway on its premises with the pavement on the highway, employed defendant, construction company, to pave with concrete the small strip of ground extending from the south end of the paving on Its property to and connecting with the pavement on said highway. In assembling material for this work, defendant piled crushed rock and sand on the state highway pavement at and near the place where the work was to be done. This pile of rock and sand was about 15 feet long, 12 feet wide, and 4 feet high, and, being all piled on the pavement, left only about 6 feet of the paved roadway unobstructed. Persons driving cars or other vehicles along the highway at this point were compelled to drive the north wheels of the vehicles on the edge of the rock pile, or drive the south wheels off the pavement on the dirt shoulder. Plaintiff with her husband, Emmet Miller, lived on a farm located about 4 miles west of the city of Trenton on this paved highway. On the morning of December 16, 1924, respondent and her husband drove from their home to the town of Trenton in a Buick automobile. In making this trip to town they drove by the pile of crushed rock which defendant had placed on the paved highway. Respondent's husband had driven by this pile of rock on the night of December 15th and observed a red light, on the top of the rock pile. A severe sleet and snow storm occurred during the afternoon of December 16. Respondent and her husband started home in the car about 6 o'clock in the evening. At this time snow was falling and the wind was blowing. Respondent's husband was driving the car, and as they approached the place where the accident occurred they were traveling at a rate of 15 miles per hour and were on the lookout for the pile of rock. In describing what happened when they reached the rock pile, respondent's husband said:

"Q. Now I want you to tell the jury just what happened at the time of the wreck. A. At the time of the wreck I was driving down the hill, and it was snowing, and it was a very dark night, and I was expecting to see the light on the rock pile.

"Q. Were you looking for the light? A. Yes, sir; I was looking for the light more than the rock pile. I knew it was there, I drove the night before, I knew there was a light on the rock pile; when I started over the top of the hill, I knew I was going down the incline ano expecting the rock pile and looking close for it. I had to be, on account of the density of the snow and the air, and didn't see the light, I was on the rock pile at once. My wife says "There is the rock pile,' and I was probably 20 feet from the pile right—seemed to me I was on it almost. I turned my car abruptly to pass it, and my car began to whirl, and the front of the car missed the rock, the hind end of the car swung around and struck the side of the rock and sand and checked it for an instant, and I thought the car would turn over, it went on up over the rock and sand and come around, turned half way around, completely around with the engine back up hill and the hind end of my car swung off the pavement, and it went off the pavement into the, on to the, shoulder where the dirt was soft, and by that time imbedded in the dirt until the wheel mashed down, and at that point the engine was straight back east from the way I was coming and turned completely upside down in the ditch.

"Q. Where were you and your wife? A. We were both in the front seat under the car, the car was closed, curtains fastened up, the top mashed down.

"Q. Tell the jury what red light, if any, there was on it on the night of the wreck. A. There was no light on it—the rock pile.

"Q. How do you know? A. Because I was looking for the light and drove right down on it, and there was none there; it was white and covered enough with snow that it was not apparent at all, didn't look until you was right on it from the light of your car any different from the other part of the road—a white sheet ahead of me."

This witness also testified that when he took his car out of the garage to start home the windshield was dry; that it was not sleeting at that time, and the snow that was falling did not stick to the windshield; and he could have seen a red light on the rock pile if one had been there.

Respondent testified in her own behalf. Her evidence relative to how the wreck happened corroborated that given by her husband.

Nine witnesses who saw the rock pile after dark testified that there was no light or lantern on or near the rock pile on the night of the accident. One witness testified that he lived on this road near the place where the car turned over; that some one informed him by telephone that there had been a wreck on the road and the people needed help; that he and a friend of his hurried to the scene; that when they arrived Mrs. Miller was still under the car; that there was no light or lantern on the rock pile; that the fact that there was no light on the rock pile was discussed by persons then present; that he looked all around the rock pile and on each side of the road, and there was no lantern either on the rock pile or anywhere else.

Respondent was pinned under the car for about 30 minutes. After help arrived she was taken to the home of Dr. Moore, in Trenton, where she remained about 4 weeks, and was then taken to the home of her daughters, in Trenton, and remained there 6 weeks.

Dr. Rooks described her injuries as follows:

"When I first came to see Mrs. Miller at Dr. Moore's house I found her in this condition of shock, all of her functions were bad, she was in a highly nervous state and suffering a good deal of pain; examination showed a considerable deformity and misplacement of this bone, which folks call the collar bone, the right clavicle; further examination at that time disclosed a fracture in the shoulder at the outer one-third of the inner two-thirds.

"Q. Now state what the condition of her shoulder is at this time and also the condition of her right arm at this time. A. The patient herself, on examination, shows almost complete inability to use the right arm. When the patient's body is examined the muscles at the point of the shoulder and in the shoulder blade are found to be shrunken from the enforced position that this arm had to be maintained in, and in part from some disturbances and the nerves which have to do with the nutrition of those muscles, the fingers are swollen and stiff to the extent that the hand cannot be used for any practical purpose.

"Q. I want you to also—Mrs. Miller, when she was asked before the jury, said she had a limited motion of the right arm, can you explain why this is? A. Because, two reasons, because of the fact that the muscles before mentioned have shrunken, she hasn't the muscular power to move the arm that she should have; furthermore the muscles that have to do with moving the arm are stiffened and the cartilage of the joints and fluid of the joints have become hardened around the shoulder joint particularly from lack of use, callous formed in joint— those two—lack of muscular power and the positive callous make it impossible to use her arm as she should.

"Q. What use, if any, has she of her right shoulder and right arm at this time? A. Well, as far as doing any work is concerned, she really has no use of her right arm."

Dr. Moore corroborated the testimony given by Dr. Rooks. He also testified that she would not recover from the injuries to the nerves, and as a result of such injuries her hand was very stiff and she was unable to close it; that the sensation and mobility were both disturbed.

Respondent testified that before her injuries she was stout and healthy and able to do all of her own work...