Pyle v. University City

Decision Date08 December 1925
Docket NumberNo. 19216.,19216.
Citation279 S.W. 217
PartiesPYLE v. UNIVERSITY CITY.
CourtMissouri Court of Appeals

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

"Not to be officially published."

Action by Cleaver Pyle, administrator of Frank Pyle, deceased, against the City of University City. From an order granting a new trial after verdict and judgment for plaintiff, latter appeals. Reversed and remanded, with directions.

Karl M. Vetsburg and Chas. W. Rutledge, both of St. Louis, for appellant.

Jos. Grand, of St. Louis, for respondent.

DAUES, P. J.

This is an action by the administrator of Frank Pyle, deceased, under the statute, for damages for his death, which occurred February 16, 1922. The petition charges that the defendant, a municipal corporation, negligently failed to provide and maintain a sufficient guard at a highway in said city, known as Ahearn boulevard. At the point where the accident happened Ahearn boulevard makes a bend around a sharp curve of River des Peres. It is charged that defendant city allowed the guard to remain in a condition so that same was not discernible at night at a reasonably safe distance ahead, and that defendant negligently permitted a tree to remain standing at the edge of said roadway at said bend, and thus shade and darken said guard, and, further, that the city negligently permitted the roadway from Olive Street road southwardly on Ahearn boulevard to remain full of holes, ruts, and ditches, and finally, that defendant negligently failed to place warning lights on the guard rail, to warn drivers of vehicles of said danger. Other averments are not necessary to set out.

The answer is a general denial, coupled with the defense of contributory negligence, and charges, in effect, that the deceased failed to stop his automobile before it went into the river, failed to keep the automobile in the traveled road where automobiles travel, and negligently drove out of and beyond the road and over the bank of the river, and, further, that deceased drove at an excessively high rate of speed.

There was a trial before the court and jury, resulting in a verdict and judgment for plaintiff for $7,500. Defendant filed a motion in arrest of judgment, which was overruled. Defendant then filed a motion for new trial, which was sustained. From the order granting a new trial this appeal is taken. The main controversy on appeal arises out of the giving of the instruction on presumption of ordinary care by the deceased. The evidence directly touching this phase of the case will be discussed in the course of the opinion.

A general outline of the record evidence is that Frank Pyle, a young man 27 years of age, unmarried and without children, and who contributed to the support of his parents, was killed in an automobile accident in about the following manner: On the night of February 16, 1922, between 7 and 8 o'clock, Pyle and a passenger were driving on Ahearn boulevard south from Olive Street road. The night was dark and foggy, and when about 300 feet south of the Olive Street road, on Ahearn boulevard, the deceased's car ran through the guard rail into River des Peres and turned over, resulting in the death of both men. Ahearn boulevard runs north and south until it reaches the bend in the river. The center of the street is paved with cinders 12 to 15 feet wide, except at the bend of the river, where the roadway was said to be 7 to 12 feet wide. The boulevard was much traveled both day and night. At the point in question the river had cut deeply into the road, causing same to form a U-shape. In other words, the cinder road ran in a straight line from Olive Street road to the river bend, and then made a sharp turn around the bend of the river. Defendant city several years before had constructed guard rails around this washout for the protection of travelers, the guard being constructed within a foot or two of the bank, and cinders were spread on the road up to the rail. It was at this sharp turn in the road that deceased's car plunged through the rail from the narrow cinder road and went down the embankment into the river.

There are exactly 90 grounds set out in the motion for new trial. The court granted a new trial on the ground that it erred in giving plaintiff's instruction No. 5, and in a memorandum filed by the trial judge doubt is expressed concerning the propriety of plaintiff's instruction No. 2. Instruction No. 5 is as follows:

"The court instructs the jury that, in the absence of evidence to the contrary, the presumption is that Frank Pyle, the deceased, was not guilty of contributory negligence, but was using the care and caution required of him, as defined in other instructions, to avoid injury to himself while he was approaching the place where the injury occurred and while at that place."

The trial court took the view that such instruction, of course, is proper where no one saw the accident, and no eyewitnesses testified upon that subject, and there is no evidence tending to show contributory negligence, citing Grant v. K. C. So. Ry. Co. (Mo. Sup.) 190 S. W. 586; Moberly v. K. C., etc., R. Co., 98 Mo. 183, 11 S. W. 569; Lynch v. Met. St. Ry. Co., 112 Mo. 420, 20 S. W. 642. But the court indicated in its memorandum that the instruction was not proper in the instant case, because the evidence tended to show that the deceased's car, from the wheel tracks on the ground, had left the usually traveled cinder portion of the road for about 15 feet and continued straight ahead into the guard rail, and that because of such evidence the instruction should not have been given.

That the defendant maintained a dangerous condition at this curve there is no room for doubt, from a reading of this record. An unimpassioned review of this record leaves one with the view that this place was a veritable deathtrap at night. We need not discuss this evidence, save to say that the guard rails were shown to have been unpainted, weather-stained, and rotten, and so located that, unless one had notice of the situation and carefully followed the cinders, there would be great danger of running into same. There was a drizzling rain this night, and a heavy fog; the roadway was "rough, and contained ruts and holes, which some of the witnesses say were fully 10 inches to a foot deep, and some of the holes were filled with water. The guard rail furnished no contrast in color with the road and surroundings and was covered by an overshadowing tree. At a point 210 feet south of where the guard rail was broken, in a straight line with the roadway north of the bend, there was a small 50 or 60 watt electric light suspended from an arm on the telephone post, and there was another light at the intersection of Ahearn boulevard and Olive Street road, 330 feet north of the guard rail. There was testimony that these lights emitted rays about 30 feet ordinarily, but that this spot was dark and obscured from the light there is substantial proof in the record.

Now, as to the evidence tending to show contributory negligence on the part of the deceased which would destroy the presumption, we find the following situation: Witnesses who saw the lay of the land after the accident testified that the left wheel track of deceased's automobile left the road at about the center of the cinder road, had it continued straight through, instead of making the bend around the river, and ran along 6 or 7 feet, up to about a foot to a foot and a half over the top of the river bank. The condition of the tracks indicated that the driver had made an effort to turn to the right before striking the guard rail. The wheel tracks showed skid marks about a foot and a half below the top of the bank, and ran for a distance of about 5 or 6 feet along the bank to a place where there was a sheer drop of about 8 feet to the river, and that the skid tracks showed that an attempt had been made for about 5 or 6 feet to get back over the embankment. It is pretty well established that the distance from the place where the automobile left the road following the wheel track along the embankment was about 6 feet in length to the point where the automobile was found in the river, which drop was an additional distance of 8 feet, making approximately 15 feet from where the automobile was actually found and the point where it left the road. The distance the left wheels traveled from the main traveled part of the cinder roadway to the guard rail is estimated at a foot or a foot and a half. The right wheels remained on the traveled part of the roadway until the automobile turned over.

Witness James Smallwood testified as plaintiff's witness that he observed that the tracks of the machine ran a little left of the center part of the road and right into the guard rail, and ran about the distance of the car before same turned over.

Witness Jake Barnholtz testified for plaintiff that he went to the scene after the...

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