Prewitt v. City of St. Joseph

• Citation: 70 S.W.2d 916,334 Mo. 1228
• Parties: Gilbert W. Prewitt, by next friend, Clarence H. Prewitt, v. City of St. Joseph, Appellant
• Decision Date: 19 April 1934
• Court: Missouri Supreme Court

70 S.W.2d 916

334 Mo. 1228

Gilbert W. Prewitt, by next friend, Clarence H. Prewitt, v. City of St. Joseph, Appellant

Supreme Court of Missouri

April 19, 1934

Appeal from Buchanan Circuit Court; Hon. L. A. Vories Judge.

Affirmed and remanded.

John S. Boyer and John P. Randolph for appellant.

(1) Plaintiff's case should not have been submitted to the jury. (a) Because the uncontroverted evidence shows that the stop button that plaintiff ran over was installed by the city as a part of a general plan for public safety and traffic regulation and the city was thus acting in a governmental capacity and there is no tort liability for such acts. Hays v. Columbia, 159 Mo.App. 431; Dist. of Columbia v. Manning, 18 F.2d 806; Jacksonville v Bell, 93 Fla. 936, 112 So. 885; City and County of Denver v. Foster, 1 P.2d 922; Hudson v. Terre Haute, 164 N.E. 502; Vezina v. City of Hartford, 138 A. 145; Cleveland v. Gustafson, 124 Ohio 607, 180 N.E. 59. (b) If the stop button constituted a defect in the street, it was a defect inherent in the general plan for public safety for which the city is not liable. Hays v. Columbia, 159 Mo.App. 431; Foster v. St. Louis, 71 Mo. 157; Trippensee v City of Jefferson, 174 Mo.App. 727; Berry v. Sedalia, 201 Mo.App. 436; Gallagher v. Tipton, 133 Mo.App. 557.

Melvin J. Duvall and W. J. Boyd for respondent.

(1) The trial court committed no error in refusing defendant's peremptory Instruction B and in submitting plaintiff's case to the jury. (a) Defendant city, in installing and maintaining the stop-button or stop-sign in its street at the place in question, was exercising its ministerial and not its governmental powers, and for negligent failure to maintain its street at the place in question in a reasonably safe condition for public travel is liable for injuries and damages resulting therefrom. Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1007; Ely v. St. Louis, 181 Mo. 730, 81 S.W. 168; Birkheimer v. Sedalia, 200 S.W. 298; Gallagher v. Tipton, 137 Mo.App. 557, 113 S.W. 674; Benton v. St. Louis, 217 Mo. 700, 118 S.W. 418. (b) There is no pretense in this case that defendant city, in installing the stop-button was acting under an ordinance. On the contrary, it is admitted of record that the stop-button was installed by the Board of Public Works of the City of St. Joseph, and defendant city proved by a former member of its board of public works that that board ordered or caused stop-buttons to be put in at street intersections throughout the city. The city, therefore, in the installation of the stop-button in question, was exercising its ministerial power as distinguished from its governmental power and is answerable for all damages for negligent failure to maintain its street in a reasonably safe condition for public travel thereon. See cases cited under Division (a). (c) Even if defendant city's board of public works had placed the stop-button in the street at the place in question, in the exercise of a discretion conferred upon it by ordinance, still said stop-button was so placed and maintained as to be dangerous to travelers at night, without having lights thereon, and defendant city failed in its legal duty to exercise ordinary care to keep its street in a reasonably safe condition for travel and is answerable in damages for such failure. Boyd v. Kansas City, 291 Mo. 622, 272 S.W. 1007: Lower v. Sedalia, 77 Mo. 444; Birkheimer v. Sedalia, 200 S.W. 298.

Gantt, J. All concur, except Hays, J., absent.

OPINION

GANTT

Action to recover $ 20,000 for injuries sustained by plaintiff when a motorcycle on which he was riding ran against a traffic sign at the intersection of Alabama and Lake Streets in St. Joseph. Judgment for $ 600. The motion of plaintiff for a new trial on the ground of inadequacy of the verdict was sustained. The motion of defendant for a new trial on the ground that plaintiff was not entitled to recover was overruled. Defendant appealed from the order granting plaintiff a new trial.

The petition charged negligence as follows: (1) placing fastening and maintaining the sign on the street; (2) maintaining the sign on the street in an obscured condition, and insufficient lighting of the intersection.

The answer admitted that St. Joseph was a city of the first class; that Alabama and Lake were public streets within said city; that the defendant placed, fastened and maintained the sign on the street, and denied the other allegations of the petition.

In substance, the answer then alleged that the sign was placed and fastened on the street as part of a general plan adopted by the Board of Public Works of the city for the purpose of regulating traffic; that it tended to eliminate collisions at the intersection; that the danger, if any, from so using the sign was incident to and inherent in the plan, and that defendant was not liable for injuries sustained by vehicles colliding with the sign.

The answer further alleged that plaintiff was guilty of contributory negligence by failing to observe where he was driving and by operating the motorcycle at an excessive rate of speed in violation of an ordinance of the city.

The general direction of Alabama Street is east and west, and the general direction of Lake Street is north and south. There is a parkway along the center of Alabama. The north side of Alabama is seventeen and one-half feet wide, and is used by westbound travelers. On the east line of the intersection of Lake and Alabama and half way between the curb lines of the westbound part of Alabama there was fastened to the surface of the street the traffic sign in question. About three years before plaintiff was injured, the sign was located at said intersection by the street department of the city under the direction of the Board of Public Works as part of a general plan for the regulation of traffic. This type of traffic sign was in general use in the city. It also was in general use in cities of the United States. They were so used for the promotion of safety and the facilitation of traffic. The sign is oval in shape, twelve by eighteen inches at the base, five or six inches in height, and was fastened securely to the street. The word "Stop" on the east side of the sign was in red letters with a white background. The balance of the sign was red. It was a warning to westbound travelers about to enter the intersection.

At about one A. M., January 1, 1930, plaintiff was driving a motorcycle west on Alabama Street at eighteen to twenty miles an hour. He was not familiar with the streets of St. Joseph. At the time cars were parked along the north side of Alabama and immediately east of the intersection. Plaintiff, on approaching the intersection, did not observe the sign. He...