Prewitt v. St. Joseph., No. 31480.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Gantt
• Citation: 70 S.W.2d 916
• Parties: GILBERT W. PREWITT, by next friend, CLARENCE H. PREWITT, v. CITY OF ST. JOSEPH, Appellant.
• Decision Date: 19 April 1934
• Docket Number: No. 31480.

70 S.W.2d 916 GILBERT W. PREWITT, by next friend, CLARENCE H. PREWITT,
v.
CITY OF ST. JOSEPH, Appellant. No. 31480. Supreme Court of Missouri. Division One, 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 Fed. (2d) 806; Jacksonville v. Bell, 93 Fla. 936, 112 So. 885; City and County of Denver v. Foster, 1 Pac. (2d) 922; Hudson v. Terre Haute, 164 N.E. 502; Vezina v. City of Hartford, 138 Atl. 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.

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

70 S.W.2d 917

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...