Treon v. City of Hamilton

• Decision Date: 14 January 1963
• Docket Number: No. 2,No. 49282,49282,2
• Citation: 363 S.W.2d 704
• Parties: Mattie Romaine TREON, widow of Robert Treon, deceased, Respondent, v. CITY OF HAMILTON, Missouri, a Municipal Corporation, Appellant
• Court: Missouri Supreme Court

Page 704

363 S.W.2d 704

Mattie Romaine TREON, widow of Robert Treon, deceased, Respondent, v. CITY OF HAMILTON, Missouri, a Municipal Corporation, Appellant.

No. 49282.

Supreme Court of Missouri, Division No. 2.

Jan. 14, 1963.

Don Chapman, Jr., Chapman & Chapman, Chillicothe, for appellant.

Robert C. Frith, Don E. Black, Chillicothe, for respondent.

EAGER, Presiding Judge.

This is a suit for the wrongful death of Robert Treon, who was killed when his automobile ran into a ditch within the city limits of Hamilton, Missouri, on December 7, 1960. In order to understand the nature of the occurrence, we will have to describe the locality in some detail. Missouri Highway 13 had formerly run north and south along Hughes Street in Hamilton from Berry Street (a main east and west street running through the center of town, which was then also U.S. Highway 36) south to the city limits. We are not interested in the highway north of Berry Street. At intersecting streets along Hughes Street there were stop signs, and the State Highway Department maintained the street. In the summer of 1960 that Department relocated and rebuilt a large part of this highway within the city limits; beginning at a point about six or seven blocks south of Berry Street new No. 13 was built to curve northeasterly so as to intersect Berry Street in the center of town,--about two blocks east of its former southbound junction. Thus, at the junction of the old and new Highways 13, there remained a sort of irregular triangle lying between the northeasterly curve of the new road, the north and south remains of the old black top road along Hughes Street, and the new gravel turnoff curving to the east from the old road to the new, the curve being to the left as one traveled south. This change had apparently been completed in the early fall of 1960. As indicated, old No. 13 was of black top construction and it was maintained by the state, with stop signs to protect it, until the changes were effected. At the time of this casualty, and for the purpose of drainage, a ditch 30 feet wide and from 5-8 feet deep had been excavated along the north side of new 13, running generally east and west, and extending across the width of old 13 just where (in its former course) it would otherwise have intersected the new road. This ditch led to a culvert running under the new road. We are not told specifically whether the north and south sides of this ditch were beveled or graded so as to slope, but we may reasonably assume that they were, as otherwise the walls would collapse. Some distance north of this ditch, and just south of where the new gravel turnoff began, a smaller ditch had been excabated across approximately the west half of old 13, it being about eight feet in length; this led to another culvert under the remainder of old 13 and afforded drainage from the west side of the old road. Between these two ditches the old black top remained, for probably 100 feet or more (it appearing that the distance from the large ditch to the new gravel turnoff was 169 feet). From this intervening and remaining black top a driveway led westward into a private residence. Just south of that driveway, and blocking much of what previously was the south bound lane of the old road, there was a long pile or windrow of asphalt, approximately 14 inches to two feet high and two to two and one-half feet wide. Thus, as one proceeded south on Hughes Street, and if he did not take the new turnoff, his course was impeded by the small ditch, the pile of asphalt, and further on, the large drainage ditch. It seems that words are inadequate to explain clearly this rather complicated physical situation, but enough thus appears to enable one to understand what follows.

This casualty occurred at about 6:45 p. m. on December 7, 1960. Treon lived in Breckenridge, some twelve miles northeast of Hamilton. He and one Junior Clark had left Breckenridge at 6:20 or 6:25 p. m. in Treon's 1955 Ford to see Treon's stepdaughter play in a basketball game at Lawson. Their route led through Hamilton and south along No. 13. Except for some casual and immaterial testimony from a woman who sought to identify Treon and Clark as men whom she saw in a car with a girl outside the Tasti Freeze in Hamilton at about 6:30 p. m., no one saw Treon after he left home and prior to his death. The attempted identification just mentioned was unimpressive and, even if true, was wholly immaterial. Treon and Clark were found dead in their car in the southerly part of the large ditch, already described, at about 6:50 p. m. One witness coming southeasterly on new 13 (northeast of the spot) saw a flash of lights and found the car in the ditch; both men had obviously died immediately. There was evidence that the bumper was imbedded in the south wall of the ditch about eighteen inches from the ground level; the back of the car was at the bottom of the ditch. The front of the car was 'mashed back' and the car severely damaged. The glass face of the speedometer was broken and a portion of the bottom of a brown bottle was found inside; one or two witnesses described this as part of a beer bottle. The label of a beer bottle and apparently another piece of the glass were found on the floor.

Reverting to the status of this immediate area,--upon construction of new 13, the Highway Department ceased to maintain Hughes Street, and on September 8, 1960, wrote the Mayor of defendant, stating that the old route along Hughes Street was no longer needed, and that it had 'relinquished' to the City the old route between certain designated points. The witnesses indicated that this area included all of Hughes Street north from a point 15-20 feet north of the north side of the large ditch. The City was not shown to have taken any formal action thereafter to abandon that part of Hughes Street lying south of the turnoff; physically it remained open except for the obstructions noted, and it was used by vehicular traffic at least for the purpose of entering and leaving the private driveway. There was an ordinary street light on a pole at the east side of Hughes Street approximately at the point where the new turnoff left that street; further south and across the new highway to the east was a filling station with relatively bright lighting. The City of Hamilton had a twenty-five mile an hour speed ordinance. At about the time of the foregoing changes U.S. Highway 36 was also relocated from the center of Hamilton, east and west, to a location running south of Hamilton; that matter, however, is purely incidental here.

It was shown beyond all possible doubt that there were no barricades, warning signs, stop signs, turn signs, traffic lights or other devices facing one as he traveled south on Hughes Street at the time of this occurrence. The only sign was a stop sign considerably to the east as one reached the new highway after driving across the new gravel turnoff. Thus, as one drove south on old 13, he would normally see no signs whatever, and no barricades. We interpose here the suggestion that the City has advanced the idea that the turnoff to the left was perfectly visible, was in itself a sufficient warning, and that it could be seen for at least a block even at night. The City takes the further position that it had had nothing to do with putting the ditches or obstacles there and had no responsibility in the premises, although the Mayor admitted that the City had jurisdiction or control of the area down to a point 15-20 feet north of the large ditch, and that he knew that people used the area of the old road at least for getting in and out of the private driveway.

Treon's principal occupation was that of a roofer and roofing contractor; it was indicated that he had done some work in Hamilton and was seen there occasionally. It was not shown whether or not he had any knowledge of this particular area or of the road changes, or whether he had traveled the road after the changes were made.

There was a verdict and judgment for the defendant. Plaintiff filed her motion for new trial on three grounds: (1) that the verdict was 'against the law and the evidence in this case'; (2) error in giving Defendant's Instruction No. 5; (3) error in giving Defendant's Instruction No. 5A. The court granted plaintiff a new trial; in the original order no ground therefor was stated. Upon motion of plaintiff and by nunc pro tunc order it was thereafter shown that the motion was sustained 'on all grounds alleged * * *.'

The appellant City insists that a verdict should have been directed for it because no negligence on its part was shown. In considering that point, we look to the evidence most favorable to the plaintiff. Erbes v. Union Electric Co., Mo., 353 S.W.2d 659. The City's first position is that the Highway Department constructed the ditches without even asking its consent, that the larger (and fatal) ditch became a part of the State Highway System, and that the City could not, in any event, have prevented this action. State ex rel. State Highway Commission v. Elliott, Banc, Mo., 326 S.W.2d 745. It must be conceded, of course, that the Department had the right to so locate the road and the incidental ditch. That, however, does not automatically relieve the City of all responsibility for areas within its jurisdiction and not absorbed in the highway, such as this area. We refer to this later. Principally, the City insists that, assuming a duty to exercise ordinary care to maintain its streets in a reasonably safe condition, the new road (to which it says traffic had been rerouted) was easily visible, and that when deceased left the street proper and entered the area which was not then set aside and used for travel and which had been substantially withdrawn, all responsibility of the City ceased. It cites: Griffin v. City of Chillicothe, 311 Mo. 648, 279 S.W. 84, 42 A.L.R. 1273; Lavinge v. City of Jefferson, Mo.App., 262 S.W.2d 60; Lowery v. City of Kansas City...