Welch v. McGowan

• Decision Date: 13 October 1914
• Docket Number: No. 16729.,16729.
• Citation: 172 S.W. 18
• Parties: WELCH v. McGOWAN et al.
• Court: Missouri Supreme Court

172 S.W. 18

WELCH v. McGOWAN et al.

No. 16729.

Supreme Court of Missouri, Division No. 2.

October 13, 1914.

Rehearing Denied November 24, 1914.

Motion to Modify Judgment Stricken from Files December 23, 1914.

MUNICIPAL CORPORATIONS (§ 806)—HIGHWAYS —INJURIES TO PERSONS UPON—CONTRIBUTORY NEGLIGENCE.

One driving along a public street which he sees is torn up must look out for obstructions and cannot recover where in broad daylight he drives onto a large gas pipe and is thrown out, though his attention be distracted by his horse getting his tail over the line.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by Casimir J. Welch against Hugh J. McGowan and others. From a judgment for plaintiff, defendants appeal. Reversed.

Action for personal injuries in which plaintiff recovered a judgment for $17,500, and defendants appeal. Kansas City was made a defendant in this action; but, upon the coming in of the testimony, the court sustained a demurrer to the evidence as to said defendant city, whereupon the cause proceeded to judgment against the other defendants above named.

Plaintiff charges that defendants placed a gas pipe on the surface of Thirteenth street in Kansas City, Mo., in such a negligent manner that it was a dangerous obstruction to said street, and that while plaintiff was driving his horse and buggy eastwardly on said street on April 23, 1907, the wheels of his buggy struck said gas pipe in such manner as to cause plaintiff to be thrown out of his buggy and into a deep ditch, from which fall he received severe and permanent injuries. The defense is contributory negligence and assumption of risk.

To arrive at a more complete understanding of the manner in which plaintiff received his injuries, we will explain that Tenth street and Thirteenth street in Kansas City, Mo., run east and west, and Tenth street lies north of Thirteenth street. Walnut street in said city runs north and south. The first north and south street lying west of Walnut is Main street, and the second parallel street west of Walnut is Baltimore avenue. The block between Walnut and Main streets is divided north and south by an alley. At the time plaintiff received his injuries, defendants had dug a ditch and were preparing to lay a large gas pipe along Thirteenth street from Walnut to Baltimore avenue. Defendants had deposited gas pipes 12 feet long and 18 inches in diameter along the north side of this ditch from Walnut street to the alley which divides the block lying between Walnut and Main. There is a slight conflict in the evidence as to whether these gas pipes were lying all along the north side of the ditch from Walnut street to Baltimore avenue.

Plaintiff says that he does not remember seeing any gas pipes except between Walnut street and the first alley west thereof. He did, however, remember observing (before his injury) that Thirteenth street was "cut open" with a ditch all the way from Baltimore avenue to Walnut street. Thirteenth street has a width of about 35 feet from curb to curb. The ditch was dug by defendants a little south of the center of the street, and a roadway for vehicles was kept open along the north side of the ditch. There is some conflict as to the width of this roadway, but practically all the witnesses state that there was room enough between the north curb of the street and the pipes placed beside the ditch aforesaid for two wagons to pass each other by careful driving. Plaintiff, whose age was 37, started to drive his "black filly" from Tenth street to a messenger office kept by him at Thirteenth and Walnut streets. His vehicle was a low buggy, and a young lady accompanied him on the drive. Plaintiff further testified that he did not usually drive along Thirteenth street, as he could reach his office at Thirteenth and Walnut by another street, and therefore did not know that Thirteenth street was torn up until he drove onto it. He also testified that he drove south from Tenth street down Baltimore avenue to Thirteenth street, and thence eastwardly along the north side of Thirteenth street to the alley between Main and Walnut, where the right wheel of his buggy struck a gas pipe left in the roadway by defendants, causing him to be thrown forward and southward into the ditch dug by defendants, whereby he received very severe and permanent injuries. Plaintiff and his witnesses also testify that defendants had not dug the ditch across the first alley west of Walnut street, but had excavated the ditch up to the east side of said alley and constructed a barricade from the south curb of the street to and across the end of the ditch at said alley. The barricade is variously described as being from 18 inches high to as high as the seat in the buggy which plaintiff was driving. Said witnesses for plaintiff further stated that the west end of the first gas pipe lying east of said barricade had been left protruding into the roadway left open for use of persons traveling along Thirteenth street. Some of said witnesses state that the end of said gas pipe stuck out into the roadway one foot, while others thought it protruded as much as six feet, and that it had been left in that condition a week.

The evidence of defendants' witnesses tend to show that the end of the gas pipe did not stick out into the roadway, and that the work of digging the ditch and placing the pipes in Thirteenth street had only been in operation four days.

Plaintiff says that, as he was crossing Main street, something like 100 feet west of the alley, his filly threw her tail over the right check line, and thereafter she went faster. His route was downgrade and his horse trotted along. Plaintiff tried to get the checkline or rein from under his filly's tail without success. When he arrived at the barricade across the end of the ditch at the alley before mentioned, he reined his filly to the left around the barricade, but did not see the pipe in the roadway. He then leaned forward to lift the filly's tail off of the rein, and, while in such leaning position, the right wheel of his buggy struck the gas pipe and cause him to be thrown forward and southward into the ditch. Plaintiff further testifies that he could not see the gas pipe before he struck it on account of the barricade. His evidence runs as follows:

"Q. I will get you to describe just how this matter occurred, to these gentlemen, Mr. Welch. A. Well, I drove south on Baltimore to Thirteenth, and then I turned east on Thirteenth, and I got to about the car track, and the horse switched her tail and caught the line. * * * She was just going kind of little out of a walk, kind of a slow trot; and when she got the line under her tail, she paced up, and I pulled on the line and made one or two efforts to get it from under her tail, and at that time I got to about the alley. * * * As I looked out...