Sheffer v. Schmidt

• Decision Date: 02 April 1930
• Docket Number: 27997
• Citation: 26 S.W.2d 592,324 Mo. 1042
• Parties: Arthur S. Sheffer v. Oscar H. Schmidt, Appellant
• Court: Missouri Supreme Court

26 S.W.2d 592

324 Mo. 1042

Arthur S. Sheffer v. Oscar H. Schmidt, Appellant

No. 27997

Supreme Court of Missouri

April 2, 1930

Appeal from Buchanan Circuit Court; Hon. Sam Wilcox, Judge.

Reversed.

Stringfellow & Garvey for appellant.

Plaintiff was conclusively guilty of contributory negligence precluding his recovery. One who invites an injury cannot make it the basis of a recovery. Matthews v. Grain Elevator Co., 59 Mo. 474; Fowler v. Randall, 99 Mo.App. 407; O'Donnell v. Patton, 117 Mo. 13; Harff v. Green, 168 Mo. 308; Sissel v. Railroad Co., 214 Mo. 515; Nivert v. Railroad Co., 232 Mo. 626; Morris v. Lt. & Power Co. (Mo.), 258 S.W 431; Mullen v. Mercantile Co. (Mo.), 260 S.W. 982; Manche v. Basket & Box Co. (Mo.), 262 S.W. 1021; State v. Trimble (Mo.), 279 S.W. 60. While ordinarily one driving along a public highway has a right to assume that said highway is free from obstructions, that rule of law is without application where the driver has actual knowledge of unusual conditions. Welch v. McGowan, 262 Mo. 709; Waldmann v. Construc. Co. (Mo.), 233 S.W. 243; Buckingham v. Commary etc. (Cal.), 178 P 318; Hamra v. Helm, 281 S.W. 103; Wheat v. St. Louis, 179 Mo. 572. It was conclusive negligence to approach the gap in the roadway at such a rate of speed that the plaintiff's automobile could not be stopped or directed along the road when it turned to go around the gap. Evans v. Railroad Co. (Mo.), 233 S.W. 397; Knoxville etc. v. Vangilder (Tenn.), 178 S.W. 1117; West Con. Co. v. White (Tenn.), 172 S.W. 301; Lausen v. Fond du Lac (Wis.), 123 N.W. 629; Ry. v. Lacey (Va.), 26 S.E. 834; Smith's Admr. v. Ry. Co. (Va.), 60 S.E. 56.

Duvall & Boyd and Miles Elliott for respondent.

The question of contributory negligence was for the jury. Schneider v. Railway Co., 238 S.W. 474; Lehnerts v. Elevator Co., 256 S.W. 821; Plate v. Wire Co., 227 S.W. 902; 13 R. C. L., Highways, secs. 387, 433, 434; 29 C. J. 700, sec. 473; Megson v. St. Louis (Mo.), 264 S.W. 23; Maus v. Springfield, 101 Mo. 613; Graney v. St. Louis, 141 Mo. 180; Kieffer v. St. Joseph (Mo.), 243 S.W. 104; Heberling v. Warrensburg, 204 Mo. 604; Fischer v. St. Louis, 189 Mo. 567; Loewer v. Sedalia, 77 Mo. 431; Bray v. West Jersey etc. Co. (N. J. L.), 116 A. 171.

Lindsay, C. Seddon and Ellison, CC., concur.

OPINION

LINDSAY

This is a suit for damages for personal injury suffered by plaintiff while driving his automobile after dark upon an unfinished part of a state highway. He was driving along a roadway upon an embankment leading to a bridge which was under construction. The embankment stopped a short distance from the end of the unfinished bridge. In order to avoid running down the unfinished end of the embankment toward the end of the bridge, he steered his car down the side of the embankment and suffered the injury of which he complains. He had driven over the same road a few hours before. In its entirety this is the highway between Hannibal and St. Joseph. The part of it involved in this case was included in a construction project, covering the distance of two and one-fourth miles, and extending westward from the east line of Buchanan County. The road on this project crossed the Third Fork of Platte River. The course of the road near and east of the river, lay along and over low land. The plan as finally projected by the Highway Department provided for a bridge over the river, and also for an overflow bridge in the lowland at a point 600 feet east of the river. The road across the lowland was constructed upon an embankment, which was from three feet to eight feet in height. The date of the occurrence of plaintiff's injury was the 6th day of November, 1924. At that time, the chief unfinished part of the project was the overflow bridge, then nearing completion. This bridge was 160 feet in length from east to west. The grading and fills had been completed, and the concrete laid thereon on each side of the overflow bridge, up to a point within a short distance from the ends of that bridge. The concrete roadway, proper, was eighteen feet wide, with dirt shoulders six feet in width. The work of completing the shoulders was not entirely done. Pending completion of the overflow bridge, the embankments on either side of it were not built quite up to the ends of the bridge nor had concrete been laid upon the roadway quite up to the ends of the fills, and there was thus a gap at each end of this bridge. The concrete was laid on each side to a point about seventy-five feet or less, from the respective ends of the bridge, and the level tops of the fills extended somewhat farther toward the bridge beyond the ends of the concrete. (The testimony varied as to these distances.) Thence, the ends of the embankment sloped downward toward the respective ends of the bridge. The conditions at the east and west ends, were similar, but it was the east end which plaintiff was approaching on the occasion of his injury. The height of the embankment at the east end was about eight feet. The witnesses varied in their estimates of the length of the slope from the top of the uncompleted fill down to the east end of the bridge. The existence of this gap or opening at the end of the bridge, without any barricade in front of it and with no warning light displayed there at the time plaintiff approached it in his automobile, are the physical conditions complained of by him. During the course of the work of grading and of laying concrete, and pending the completion of the overflow bridge, and making of a junction between the bridge and the roadway proper, a temporary roadway was used by the contractors and by persons residing within the limits of the project, to go around the overflow bridge; and, there is evidence tending to show that in the period shortly before the plaintiff's injury persons other than local residents, or men employed by the contractors, were using this highway, and passing along this temporary roadway, connecting the two concreted ends. This temporary roadway, from a point near the end of the concrete on the wesside of the overflow bridge, ran diagonally down the south slope of the embankment to the level of the ground, and thence east, along the south side of the bridge, and thence diagonally up the embankment, to a point near the end of the concrete on the east side of the bridge.

In the afternoon of the day of plaintiff's injury, accompanied by two men, he drove his car, a Dodge sedan, eastward from St. Joseph, his place of residence, over the roadway included in the project under construction, and in doing so drove over the temporary roadway leading around the bridge, as above described. Returning in the evening after dark, of the same day, he drove over the concrete road on the east of the overflow bridge, at a speed of twenty to twenty-five miles an hour, and up to a point near the gap at the east end of the bridge, and it appears, so near the gap, he realized that at the speed his car was moving, he could not stop the car in time to avoid running down the end of the embankment and against the bridge. He put on the brakes, and at the same time turned the car to the south, and west, down the side of the embankment. The car ran down the embankment and for a short distance over the low ground, the plaintiff with his foot pressing the brake and endeavoring to avoid striking certain bumps or unequal places. The car, however, did strike a bank, and by reason of the concussion against the bank and of the tense position of the plaintiff, he suffered a vertebral fracture, and injuries incidental thereto.

The contract for constructing the concrete pavement on this project was let by the Highway Department to Stanton and Son. It was a part of their contract to build the shoulders, to maintain a detour road around the entire project, to be used until the completion of the project; also, to erect and maintain barricades, detour and warning signs, at places designated by the Highway Department. A detour road around the entire project had been maintained and used, and was being maintained and used during the construction work prior to the time of plaintiff's injury, and until afterward. The contract for the grading, and construction of culverts and bridges, was let to defendant Schmidt. Defendant sub-let the contract for grading to one Ernest Euler, with the consent of the Highway Department. Euler did the work of grading, and, under his contract with Schmidt, at the price and rate specified for that work in Schmidt's contract with the Highway Department. Schmidt retained and did the work of construction of culverts and bridges. The construction of the overflow bridge was a work required under a change made by the Highway Department in the original plan, a change which the contract with Schmidt permitted. As a result of this change of plan, and the delay incident thereto, Schmidt did not get the overflow bridge finished in time for the embankment made by Euler to be completed at the ends of that bridge; but, the work of Euler in grading, and of Stanton and Son in laying concrete, was brought up near each end of the bridge, and suspended, pending completion of the bridge.

The plaintiff in his petition alleged that defendant at the time in question was engaged in the work of building the grades and erecting bridges on the project including the overflow bridge, and knew or, in the exercise of ordinary care, should have known the roadway was open to travel and was being used by the public generally for travel; that in the work of building the bridge in question, defendant "caused" the gap or chasm to be left at the end of the bridge, and negligently caused it to be left unbarricaded and unguarded, and failed to maintain any lights or signs of warning at that place.

The answer, after a general...