Nimmo v. Perkinson Bros. Const. Co.

• Decision Date: 17 April 1935
• Docket Number: No. 32939.,32939.
• Citation: 85 S.W.2d 98
• Parties: NIMMO v. PERKINSON BROS. CONST. CO. et al.
• Court: Missouri Supreme Court

85 S.W.2d 98

NIMMO v. PERKINSON BROS. CONST. CO. et al.

No. 32939.

Supreme Court of Missouri, Division No. 1.

April 17, 1935.

Motion for Rehearing Overruled July 9, 1935.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

Action by Robert Nimmo against Perkinson Bros. Construction Company and another. From an adverse judgment, plaintiff appeals.

Reversed and remanded with directions.

Wm. Robert Davis and William Kohn, both of St. Louis, for appellant.

Joseph N. Hassett and Ernest E. Baker, both of St. Louis, for respondent Perkinson Bros. Const. Co.

Charles M. Hay, City Counselor, and Oliver Senti and Louis A. McKeown, Associate City Counselors, all of St. Louis, for respondent City of St. Louis.

COLES, Judge.

Appellant, Robert Nimmo, as plaintiff, brought this suit in the circuit court of the city of St. Louis seeking to recover damages for personal injuries alleged to have been sustained by him as a result of an automobile in which he was riding running into an excavation in the 7600 block on North Broadway, a public street in the city of St. Louis. North Broadway is a street leading north and south and the 7600 block of the street was being reconstructed at the time of the accident here in question. The work of reconstructing the street was being done by respondent Perkinson Bros. Construction Company under a contract with the city of St. Louis and Michael J. Smith was doing the excavation work under a contract with Perkinson Bros. Construction Company. The owner and driver of the automobile in which appellant was riding was Joseph Karner. Appellant's suit was originally brought against Perkinson Bros. Construction Company, the city of St. Louis, Smith, and Karner as defendants. Later, appellant dismissed his suit as to the defendants Smith and Karner so that the present appeal is being prosecuted only as against Perkinson Bros. Construction Company and the city of St. Louis. Appellant in his petition alleged that in doing the work of reconstructing block 7600 North Broadway respondent Perkinson Bros. Construction Company had made an excavation in the street in that block which rendered the street dangerous for travel by vehicles. The negligence charged against Perkinson Bros. Construction Company was: (1) That it failed and neglected to guard or protect such excavation at night, although it knew or in the exercise of ordinary care could have known of the danger created thereby to vehicles traveling on the street and in leaving the excavation "unguarded and unprotected at night and without red lanterns or other danger signals to warn drivers of vehicles on said street of the existence of said excavation and of the danger incident thereto"; (2) that it failed "to place warning signals, such as lighted red lanterns at or near the excavation" and thereby warn the driver of the automobile in which plaintiff was riding of said dangerous condition; (3) that it failed to have a watchman stationed at the excavation to warn approaching traffic and direct it away from it. The city of St. Louis and Perkinson Bros. Construction Company were each charged with negligence in that "each of them knew, or by the exercise of ordinary care could have known, of said dangerous condition of said street at said point in time thereafter, by the exercise of ordinary care to have removed the same and render said street reasonably safe for use by vehicles but negligently failed to do so, and suffered and permitted the same to be and remain in said dangerous condition and thereby caused said injuries to plaintiff." The answer of Perkinson Bros. Construction Company was a general denial. The city of St. Louis, in addition to a general denial, pleaded contributory negligence.

After appellant had submitted his evidence in the trial court, the court intimated that it would give an instruction in the nature of a demurrer to the evidence on behalf of the city of St. Louis. Thereupon appellant took an involuntary nonsuit as to the city of St. Louis with leave to move to set the same aside. Thereafter, the trial proceeded and the jury returned a verdict in favor of the other defendants upon which judgment was duly entered. Appellant's motion to set aside the nonsuit and also his motion for a new trial were overruled and thereupon he perfected an appeal to this court.

Appellant, Robert Nimmo, testified that at the time of the accident in question he was working as a deck hand on a government boat which was located on the Mississippi river north of St. Louis and about three miles below Alton. That November 6, 1930, was pay day for the employees on the government boat and that on that day he arranged with two fellow employees on the boat, Joseph Karner and Ira Tucker, to make a trip to St. Louis in Karner's car. That appellant and his companions started to St. Louis about 1:30 p. m. on the day mentioned, and after passing the afternoon and part of the night of that day in St. Louis, started back to the boat about 4 a. m. on the morning of November 7, 1930. On the return journey Karner was driving the car, sitting on the left, Tucker was in the middle, and appellant sat on the right. The car was proceeding north on Broadway and reached the 7600 block about 4:30 to 5 a. m. On entering block No. 7600 the car was traveling about 30 miles an hour and appellant observed a "slit" in the middle of the street about 3 or 4 feet wide and about 100 feet long. There was a paved space about 20 feet wide between this "slit" and the east curb of Broadway. To avoid this "slit" the car was swerved to the right, and after proceeding about 80 or 100 feet further north on the east side of Broadway, appellant observed a "hole" or excavation in the street about 20 or 30 feet ahead of the car; that he first saw this excavation when the lights from the car shone upon it. The car ran into the "hole" or excavation and turned over inflicting the injuries of which appellant complains. The excavation was about 20 feet wide and about 2 feet deep. It was dark at the time of the accident, but the street lights were burning. Appellant further testified that he "didn't see any lights or barricades of any kind"; that he saw no "red lights as we approached, either lanterns or lights or torches"; that he saw no red lights along the "slit"; that after he got out of the overturned automobile he observed that the car was about a foot or two from a steam shovel standing in the street; that Karner, the driver of the car, did not "knock down a trestle." Appellant called as a witness Fred A. Winter, who was a civil engineer for the board of public service of the city of St. Louis. He produced a written contract between the city and Perkinson Bros. Construction Company under which the construction company was to reconstruct and pave Broadway in the 7600 block and in other blocks. This contract was submitted in evidence by appellant. The contract provided, among other things, that the contractor "shall maintain satisfactory barricades and street closing signs to prevent trespassing on the portion of the street closed to traffic, which shall be limited as hereinbefore specified to one side of the roadway only, and a watchman shall be kept on the work both day and night to prevent the removal of the barricades whenever work is not actually in progress." This witness testified that North Broadway was a busy street and that the plan of reconstruction contemplated that only one side of the street should be closed to traffic at any given time and that all traffic should be diverted from time to time to that side of the street which remained open to traffic. He testified to the usual precautions taken to protect work under construction and to divert traffic from the closed side of the street to the open side, but stated that he was never on this work after 5 p. m., was not there on the night this accident happened, and was unable to state whether Perkinson Bros. Construction Company, the city, or any one else kept a watchman there throughout the night to see that the barricades stayed up and the lights remained lit.

Charles E. Moser, a witness for appellant, testified that he lived at 7654 North Broadway about 100 feet north of the south end of the "slit." The evidence makes it apparent that the residence of this witness must have been on the east side of Broadway just east of where the accident occurred. This witness further testified that he "heard the accident" and went out in his yard to "see what had happened" and saw the automobile "lying on the street." He further testified that the accident happened about "4 or 5 o'clock in the morning"; that on the previous evening between 9 and 10 o'clock an automobile had "hit the barricade and knocked them down" and then backed out and went north. The witness stated that he saw this occurrence from the window of his house and at that time did not leave his house. He further testified that when the barricade was "knocked down" about 9 o'clock in the evening it put the light out in the "middle" and that it remained down the last he saw of it. This witness further stated that when the motorist "knocked down" the barricade about 9 p. m. on the evening previous to the accident here in question one light at the south end of the "slit" was left burning; that the light which remained burning was at the end of the "slit" and not out in the eastern half of the roadway. This witness also described the location and construction of the "barricade." He testified that it was located at the south end of "the slit" about 100 feet south of his residence; that the barricade consisted of crosspieces, one at the east curb, one in the middle of the street, and one between the two mentioned with timbers lying across them laid in the "forks" of the crosspieces, one timber spanning half the distance and the other the other half; that at night a light was placed on the street "at the foot of the crosspiece in the middle."

Ira Tucker, who was in the...