Rohmann v. City of Richmond Heights

• Decision Date: 09 January 1940
• Docket Number: No. 24912.,24912.
• Citation: 135 S.W.2d 378
• Parties: ROHMANN v. CITY OF RICHMOND HEIGHTS et al.
• Court: Missouri Court of Appeals

135 S.W.2d 378

ROHMANN v. CITY OF RICHMOND HEIGHTS et al.

No. 24912.

St. Louis Court of Appeals. Missouri.

January 9, 1940.

Rehearing Denied January 23, 1940.

Appeal from St. Louis Circuit Court; William B. Flynn, Judge.

"Not to be reported in State Reports."

Action by William O. Rohmann against the City of Richmond Heights and others for personal injuries. Judgment for plaintiff, and defendants appeal. A motion to strike additional abstract was made by the City of St. Louis.

Motion to strike additional abstract overruled; judgment reversed.

Bishop & Claiborne and George Heneghan, all of St. Louis, for appellant Spiniello Const. Co.

Edgar H. Wayman, City Counselor, and David A. McMullan, Associate City Counselor, both of St. Louis, for appellant City of St. Louis.

Philip Foley, of Clayton, and Louis Robertson and Francis Finley, both of St. Louis, for appellant City of Richmond Heights.

Louis Kawin and Russell J. Horsefield, both of St. Louis, for respondent.

SUTTON, Commissioner.

This case comes to the writer by reassignment. It is an action to recover damages for personal injuries sustained by plaintiff in an accident resulting in a collision between his Plymouth coach, which he was driving, and a car belonging to Charles H. Glader and being driven by him. The accident occurred on Clayton Road, just west of Bellevue Avenue and east of Big Bend Boulevard, in St. Louis County, about six o'clock in the evening of August 1, 1935.

The trial, with a jury, resulted in a verdict in favor of plaintiff for $6,000. Judgment was given accordingly. Defendants appeal.

Plaintiff and defendants here were defendants in another case arising out of the same accident in which Charles H. Glader was plaintiff. There was a judgment in favor of Glader against all the defendants in that case, which was affirmed by this court on appeal. See: Glader v. City of Richmond Heights, Mo.App., 121 S.W.2d 254.

The instant case involves the examination of an abstract of the record, an additional abstract of the record, and ten separate briefs of counsel, consisting in all of 449 printed pages, along with the bill of exceptions, consisting of 395 typewritten pages, which has been lodged here. Besides, we have a motion of the City of St. Louis to strike from the files the additional abstract.

We have examined the motion to strike the additional abstract, and conclude that it should be overruled.

Defendants complain here that the court erred in refusing their several instructions in the nature of demurrers to the evidence. They urge that these instructions should have been given on the ground, among others, that plaintiff has shown himself guilty of contributory negligence as a matter of law.

The evidence shows that on the occasion of the accident plaintiff was driving east on the south side of Clayton Road, and Glader was driving west on the north side of Clayton Road, which is about sixty-five feet wide. The center line of the road is the boundary between the City of Clayton and the City of Richmond Heights. On each side of the center line are three traffic lanes. The north lanes are used for westbound traffic and the south lanes for eastbound traffic. At the time of the accident the eastbound lane adjoining the center line of the road had been torn up and a large water main placed in it, and the ditch dug for the water main had been filled up with earth and rock, and the road was open for traffic. The road was paved with concrete and in laying the water main the concrete in the lane where the water main was laid was torn up and removed. The concrete in the other lanes of the road remained intact. The work of laying the water main was done by defendant Spiniello Construction Company under a contract with defendant City of St. Louis. The work was authorized by an ordinance enacted by defendant City of Richmond Heights, which was in the nature of a contract between defendant City of Richmond Heights and defendant City of St. Louis.

The ordinance of the City of Richmond Heights provides that neither the City of St. Louis nor its contractor or subcontractor will lay the completed concrete slab over any portion or part of the backfill or cut within a period of less than ninety days after the backfill has been made, tamped and completed; that the backfill shall be to a height within two feet of the surface of the road; that no pavement shall be laid until there has been at least a thirty-day use of the road by vehicular traffic.

The contract between the Spiniello Construction Company and the City of St. Louis provides that the Spiniello Construction Company as contractor shall at its own cost and expense do all the work of laying the water main and furnish all materials therefor in accordance with the plans and specifications; that the work shall be executed under the general control of the director of public utilities, and under the direct supervision of the water commissioner, of the City of St. Louis and its properly authorized agents; that the contractor shall give his personal attention to the fulfillment of the contract and keep the same under his control and not assign by power of attorney or otherwise any portion of the work; that measures shall be taken by the contractor, whether required by law or not, to insure the safety of the public by such precautions as fences, watchmen, lights and guards as the exigencies of the case may call for; that on or before the completion of the work the contractor shall remove all temporary structures, rails, ties and other woodwork of any railways built by him and all rubbish of all kinds from the conduit right-of-way, streets and roads which he shall have occupied; that the contractor shall furnish all equipment, labor, and power necessary to make the required excavation and do all backfilling after the conduit is laid; and that when an excavation shall be made in a public road or street the open excavation shall be limited to the length of one thousand feet, the backfill to be made immediately after the pipe is laid, and surplus material to be removed in order to permit replacing the pavement.

The petition alleges that on August 1, 1935, and for several weeks prior thereto the filled in portion of Clayton Road east of Big Bend Boulevard in the City of Richmond Heights was in a defective and dangerous condition and unfit to be open for public use or vehicular traffic; that said portion of said highway and street had numerous excavations, holes, ditches, ruts, and bumps therein, the existence of which conditions, excavations, holes, ditches, ruts and bumps were known to the defendants and each of them; that defendant City of Richmond Heights negligently failed to keep and maintain said portion of said public street and highway in good repair and fit for public use and travel and each and all of said defendants negligently failed to guard said portion of said street and highway while the same was still out of repair, in a defective and dangerous condition and unfit for public use or vehicular traffic, and thereby negligently failed to prevent automobiles and other vehicles from attempting to travel thereon; that on August 1, 1935, at or about 6:15 p. m. plaintiff was operating and riding in his automobile eastwardly on the south side of said Clayton Road between Big Bend Boulevard and Bellevue Avenue, that is, within the City of Richmond Heights, on Clayton Road, east of Big Bend Boulevard; that, while exercising due care in the operation of said automobile and while traveling eastwardly on the south side of said Clayton Road, plaintiff drove his automobile upon said filled in portion of Clayton Road and into one or more excavations, holes, ditches or ruts therein; that said excavations, holes, ditches or ruts caused the course of said automobile to be suddenly changed and diverted so that said automobile was thereby caused to turn suddenly and to proceed in a northwardly direction over and upon the north side of said Clayton Road and into that portion of Clayton Road intended for use and travel by westbound vehicular traffic and without any negligence or fault on the part of the plaintiff to collide with another automobile which was traveling in a westwardly direction on the north side of said Clayton Road, and that as a result of the aforesaid facts and occurrences plaintiff sustained serious bodily injuries.

Plaintiff testified that the accident happened about a block and a half east of Big Bend Boulevard where he got onto Clayton Road; that in that block and a half there were no barriers or warning signs to prevent him from using Clayton Road in its entirety; that as he proceeded that block and a half on Clayton Road eastwardly his maximum speed was between twenty and twenty-five miles an hour; that at that time the westbound traffic on Clayton Road was heavy, and the eastbound traffic was light; that at that point Clayton Road is sixty-four feet eight inches wide from curb to curb; that the Richmond Heights portion from the center of the road to the south curb is thirty-two feet four inches wide; that he was over Clayton Road that morning before the accident happened; that he traveled over the north portion going west; that as he came east on the occasion of the accident he was using the south portion; that there were several automobiles parked on the south side of Clayton Road; that there was a large truck directly ahead of him going east; that he noticed it a half block before he got to it; that it was upgrade at this point; that the truck was traveling fifteen miles an hour; that he gave the truck the horn, and it didn't move over, and when he did, he pulled off, got his left front wheel off in the excavated portion, where it went down; that the excavated portion was ten feet four inches wide; that there were twenty-two feet of concrete left on the south side of Clayton Road; that there was dust on the concrete slab and on the excavated portion so that it was hard to tell...