Stollhans v. City of St. Louis

• Decision Date: 19 November 1938
• Docket Number: 35528
• Citation: 121 S.W.2d 808,343 Mo. 467
• Parties: John H. Stollhans v. The City of St. Louis, a Municipal Corporation, Appellant
• Court: Missouri Supreme Court

121 S.W.2d 808

343 Mo. 467

John H. Stollhans v. The City of St. Louis, a Municipal Corporation, Appellant

No. 35528

Supreme Court of Missouri

November 19, 1938

Appeal from Circuit Court of City of St. Louis; Hon. Moses Hartmann, Judge.

Order granting a new trial affirmed.

Edgar H. Wayman and Louis A. McKeown for appellant.

(1) The proximate cause of plaintiff's injury was an issue in the case, and Instruction 5 properly instructed as to that issue. Applebee v. Ross, 48 S.W.2d 902; Jackson v Malden, 72 S.W.2d 857; Hickman v. St. Louis Dairy Co., 90 S.W.2d 180; State ex rel. Broeving v Cox, 310 Mo. 375, 276 S.W. 869; Gettemeyer v Thies, 51 S.W.2d 870. (a) Plaintiff could not complain on appeal, of instruction based on his own theory, and which was the converse of instruction requested by him. Huss v. Bakery Co., 210 Mo. 51, 108 S.W. 63; Everhart v. Bryson, 244 Mo. 521, 149 S.W. 307; Applebee v. Ross, 48 S.W.2d 902; Williams v. Hyman Michaels Co., 277 S.W. 595. (b) The instruction was broad enough to be construed as to permit a verdict for plaintiff even if plaintiff was contributorially negligent and even though defendant's negligence was a remote cause or merely contributed to the plaintiff's injury and therefore plaintiff cannot complain since he was thus unduly favored by defendant's Instruction 5. Primmer v. Amer. Car & Fdy., 20 S.W.2d 591; Dougherty v. Mo. Ry. Co., 97 Mo. 647; Hof v. Transit Co., 213 Mo. 468, 111 S.W. 1166; Krehmeyer v. Transit Co., 220 Mo. 670, 120 S.W. 78; Gale v. Helmbacher Forge Co., 159 Mo.App. 639, 140 S.W. 77; Morris v. Sietrich, 118 S.W.2d 49. And as this was more favorable to plaintiff than necessary, he could not complain. Hurst v. Montgomery-Ward, 107 S.W.2d 189; Kimmel v. Benna, 70 Mo. 52; Heigold v. United Rys. Co., 308 Mo. 142, 271 S.W. 773; Keady v. Stix, Baer & Fuller, 15 S.W.2d 379. (2) Under the evidence, plaintiff could not recover in any event, because he was guilty of contributory negligence as a matter of law. Dempsey v. Horton, 337 Mo. 388, 84 S.W.2d 621; Iman v. Walter Freund Bread Co., 332 Mo. 461, 58 S.W.2d 479; Russell v. Bauer-Berger Gro. Co., 288 S.W. 988. (a) Under the evidence, plaintiff could not have recovered, as the alleged negligence of the city was not the proximate cause of plaintiff's injury. 45 C. J. 926, 928; Borak v. Mosler Safe Co., 231 S.W. 623, 288 Mo. 83; Madden v. Red Line, 76 S.W.2d 435; Wood v. Wells, 270 S.W. 332; DeMoss v. K. C. Ry. Co. v. Lindsay, 109 Ill.App. 533; Enoch v. Pittsburg, C., C., C. & St. L. Ry. Co., 145 Ind. 635; Kelly v. Texas Ry. Co., 97 Tex. 619, 80 S.W. 1197; Winders, Admr., v. H. Beckel Co., 284 Ky. 4.

Eagleton, Waechter, Yost, Elam & Clark for respondent.

(1) There was no error in the action of the trial court in submitting plaintiff's case to the jury, because: (a) The defendant city (appellant here) was guilty of negligence in permitting the sidewalks of Carter Avenue to be so obstructed with dirt and mud as to require pedestrians, using said sidewalks, to leave them and walk in the street there to avoid such obstruction. This negligence of the city is not a contested issue on this appeal, the appellant having tacitly conceded it. Shafir v. Sieben, 223 S.W. 419; Strother v. Kansas City, 316 Mo. 1067, 296 S.W. 795; Lindman v. Kansas City, 308 Mo. 161, 271 S.W. 516; Shafir v. Carroll, 309 Mo. 458, 274 S.W. 755; Adelman v. Altman, 209 Mo.App. 583, 240 S.W. 272; Daneschocky v. Sieben, 282 S.W. 506; Strother v. Sieben, 220 Mo.App. 1027, 282 S.W. 502; Daneschocky v. Sieben, 195 Mo.App. 470, 193 S.W. 966. (b) The plaintiff was not guilty of contributory negligence as a matter of law. He was under no duty to turn about constantly or repeatedly, or at any stated intervals of time or space, to observe the approach of vehicles from the rear. Whether he did, or did not do, what an ordinarily careful and prudent person would have done under the same circumstances was a question for the jury. McKenna v. Lynch, 289 Mo. 16, 233 S.W. 175; Moffatt v. Link, 229 S.W. 836; 3 Berry on Automobiles (7 Ed.), pp. 406-407, sec. 3.240; 2 Blashfield, Cyclopedia of Automobile Law & Practice (Permanent Ed.), pp. 469-470, sec. 1414; Strother v. Kansas City, 316 Mo. 1067, 296 S.W. 795; Goodwin v. Eugas, 290 Mo. 673, 236 S.W. 50; Adelman v. Altman, 209 Mo.App. 583, 240 S.W. 272; Brown v. Conser Laundry Co., 246 S.W. 166; Weber v. Evans, 15 S.W.2d 370; Pollock v. McCormick, 169 Minn. 55, 210 N.W. 630. (c) Whether the aforesaid negligence of the city was a proximate cause of plaintiff's injury was a matter for the determination of the jury. It is settled, beyond question, that such negligence cannot be ruled, as a matter of law, to be not a proximate cause of the injury. Shafir v. Sieben, 233 S.W. 419; Daneschocky v. Sieben, 195 Mo.App. 470, 193 S.W. 966. (2) There was no error in the action of the trial court in sustaining plaintiff's motion for a new trial upon the ground that Instruction 5, given at the instance and request of the appealing defendant, was erroneous, because: (a) Instruction 5 was erroneous and misleading in that it informed the jury that plaintiff could not recover from the defendant unless the "obstruction in the sidewalk" was the sole proximate cause of plaintiff's injury. State ex rel. St. Charles v. Haid, 325 Mo. 107, 28 S.W.2d 97; Bradley v. Becker, 11 S.W.2d 8; Wastl v. Montana Union Ry. Co., 24 Mont. 159, 61 P. 9; Rockwell v. Grand Trunk W. Ry. Co., 253 Mich. 144, 234 N.W. 159; United States v. Hudson, 65 F. 68; Alexander v. Hoenshell, 66 S.W.2d 164; Gillette v. Laederich, 242 S.W. 112. (b) The trial court was vested with some discretion as to whether Instruction 5 was misleading to the jury, and this court should be hesitant about interfering with the exercise of such discretion in the granting of a new trial. Hoepper v. Southern Hotel Co., 44 S.W. 257; Stafford v. Ryan, 276 S.W. 636; Strother v. Sieben, 220 Mo.App. 1027, 282 S.W. 502; Tappmeyer v. Ryckoff, 45 S.W.2d 890.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action for $ 30,000 damages for personal injuries. The jury's verdict was for defendant. The trial court granted plaintiff a new trial on the ground that it erred in giving defendant's Instruction No. 5. Defendant has appealed from this order.

The theory of plaintiff's petition was that defendant, by negligently permitting the sidewalks on Carter Avenue in St. Louis to be obstructed, compelled plaintiff to walk at night in the part of the street traveled by automobiles, where he was struck and injured by an automobile. Defendant contends that any error in instructions was immaterial because plaintiff was guilty of contributory negligence as a matter of law. For the purpose of ruling this contention, we state the facts shown by the evidence viewed most favorably to plaintiff. It was shown that Carter Avenue, at the place of plaintiff's injury, was a four-lane highway "used extensively for through traffic to Kingshighway;" that "the general mode of travel along there was fast;" and that "there was no side street there that they had to stop for." Carter Avenue had been paved in 1913 or 1914, "through a section that was rather sparsely settled and was rough country." About two years before plaintiff was injured "concrete sidewalks were placed on Carter Avenue west of Newstead;" and these "extended from Newstead to Taylor Avenue (about 1000 feet west) on both sides of the street." About the same time the Christian Hospital was built at the northwest corner of Carter and Newstead. From this point, going west on Carter Avenue, "there is a big hill and it comes down into a deep hollow." There was a deep cut with high embankments ("as high as forty feet") on both sides of the street near the top of the hill just west of the hospital, and in rainy weather dirt washed down from these banks over the sidewalks.

At the time plaintiff was injured, he and William Timmerman were walking west (downgrade) on the north side of Carter Avenue. Plaintiff stated the conditions at that time, as follows:

"It a dark misty night, like a fog, and a real dark night. The streets were wet and it was misting at the time. . . . The mud from the bank on the north side had washed down over the sidewalk, completely covering it, and extended into the street about seven or eight feet, at places, south of the north curb. . . . The same condition existed on the south side of the street. . . . The mud on the sidewalk west of the point where we went into the street was two or three feet deep in places. . . . Where the mud was thickest, it was about two and a half or three feet at the curb."

Timmerman testified:

"We walked on the north sidewalk of the street until we got to the end of the hospital property and then we had to detour and walk down the street. The sidewalk was literally covered with mud directly in back of the hospital property. . . . The mud was at a slant about like that (indicating an angle of about thirty-five or forty degrees above the horizontal). The same condition existed on the south side of the street."

It was further shown that these conditions had existed for more than a year before plaintiff was injured, and that people frequently walked in the street there. Plaintiff was struck by a car driven by William Moser, traveling west in the north center lane of Carter Avenue. Timmerman was nearest the curb and plaintiff was about seven feet south of it. Just before plaintiff was struck, an automobile, with very bright lights passed them going east. Moser said that he was blinded by the lights of this car and did not see plaintiff. Both Mr. and Mrs. Moser (who was riding with him) corroborated plaintiff as to the condition of the sidewalk and the weather conditions. (Defendant's evidence was that it was clear...