Wilmore v. Holmes

• Decision Date: 24 May 1928
• Docket Number: 4322
• Citation: 7 S.W.2d 410
• Parties: WILMORE v. HOLMES.
• Court: Missouri Court of Appeals

7 S.W.2d 410

WILMORE v. HOLMES.

No. 4322

Court of Appeals of Missouri, Springfield

May 24, 1928

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

Action by Lucille Wilmore, by next friend, against H. B. Holmes. Judgment for plaintiff, and defendant appeals. Affirmed.

B. H Boyer and B. H. Marbury, both of Farmington, for appellant.

Davis & Damron, of Fredericktown, for respondent.

OPINION

BAILEY, J.

This is an action for damages on account of personal injuries sustained by plaintiff when an automobile, in which she was riding as a guest, turned over on a state highway west of Fredericktown, Mo. The cause originated in the circuit court of Madison county and was later transferred to Iron county on change of venue.

The petition charges that defendant negligently and without authority maintained a dangerous obstruction on the state highway and negligently failed to place any notice, signal or warning at or near the obstruction; that on the evening of July 26, 1924, while riding in a touring car being driven by one Robert Whitchurch, the car ran into and upon said obstruction and overturned, whereby plaintiff was severely injured. The answer alleged that the state highway on which plaintiff was injured was at the time under course of construction; that a subcontractor, Luke Vance, employed defendant to furnish gravel and deliver it along the roadside, and that he placed the gravel in the gutter south of the traveled portion of the road; that it was so placed with the consent of the state chief of maintenance; that it did not obstruct the traveled portion of said state highway that the injury was caused by the negligence of plaintiff and Whitchurch in driving at an excessive rate of speed; that the gravel did not obstruct the road, but was in plain view, and plaintiff assumed the risk of driving on said highway. On the issues thus made plaintiff obtained a verdict and judgment for $500. Defendant has appealed.

Error is assigned in the admission and refusal of evidence, in the giving and refusing of instructions, and in failure to sustain a demurrer to the evidence. Defendant, however, has referred to but two of these assignments in his printed brief, and all other assignments of error will be considered abandoned. Compton v. Louis Rich Construction Co., 315 Mo. 1068, 287 S.W. 474; Amos James Grocery Co. v. Prichard (Mo. App.) 297 S.W. 721.

The point is made that the evidence shows the gravel had been placed upon the side of the highway for use in construction of the highway and at a location designated by the contractor and approved by the state supervisor of maintenance and that defendant lost control of the gravel when it was so placed. If there was any substantial evidence to support this theory it might be tenable. But there is no evidence that defendant was given authority to place the gravel so that it extended into the roadway. His authority was to place the gravel so that it did not extend beyond the shoulders of the road. The supervisor of maintenance testified as follows:

"Mr. Holmes came to me and wanted to dump some gravel out there on the west road, for the purpose of building a culvert and a bridge on No. 70. I told him he could place the gravel out on that road, so that he kept it off the shoulder of the road, and he must select a wide place in the road so that it would not bother the traffic. I did this after consulting with Mr. Holmes, and I told him it would be impossible to put it on the other side of the road, as there would not be room enough for traffic. * * * The graveled surface of the road was 12 feet wide, and the maintenance department extended it out to 24 feet, or approximately; I didn’t measure it. From my viewpoint, the gravel extended 8 feet out in the road along the driveway of 16 feet. There was 16 feet open."

The evidence of plaintiff further showed this gravel was piled to a height of about 2 ½ feet extending...