169 S.W.2d 393 | Mo. | 1943
Lead Opinion
As a W.P.A. sponsored project the City of Moberly resurfaced and improved certain streets. In improving the drainage of a viaduct and relaying the sewer line a ditch was dug in the parkway between the sidewalk and curb line of Rollins Street. On May 13, 1941, W.H. Bean fell in this ditch and for his injuries recovered a judgment of $7,666.00 against the City of Moberly. On this appeal the city tacitly concedes that Bean's evidence justified a finding that the city had breached its common law duty to [395] exercise due care in the maintenance of its ways and was, therefore, negligent, but argues that its demurrers should have been sustained because the evidence also demonstrated that he was guilty of contributory negligence as a matter of law.
[1] The ditch intersected the driveway to the Tedford home and it was at this point Bean fell. There were barricades or piles of dirt both north and south of the ditch. There were "bomb lights" at the edge of the street where dirt was piled and a light on either side of the entrance to the drive, but at the east end of the ditch, where it intersected the driveway, there were no lights or barricades according to the jury's finding. Bean and his wife were visiting his brother-in-law. The driveway was the vehicular entrance to his home. When the Beans first called they parked their car in the driveway back of the brother-in-law's car. Later Bean backed his car out of the drive while his brother-in-law drove his car out. They both went to the business district on an errand. When they came back Ray stopped his car in the drive and let Bean out. He then observed that his car obstructed the sidewalk and backed it up so that it occupied the space in the driveway next to the parkway and alongside the east *979 end of the unprotected and unguarded ditch. About 8:45 o'clock the Rays and Beans started to the second picture show. The men walked ahead to the Ray car; Hubert Ray went around to the east side of the car and Bean to the west side. As Bean was about to get in the car, but before he attempted to open the car door, he fell from the parkway into the ditch and was injured.
The city contends that Bean knew the parkway was torn up, repair work in progress and that the street was in a defective and dangerous condition, and, therefore, his fall was caused by his own failure to use his faculties and exercise due care to discover and avoid the obviously open, unguarded ditch and failing to do so was guilty of such conduct that the court should have declared him guilty of contributory negligence as a matter of law. In support of its position the city relies upon instances of a motorist proceeding to drive over and across streets knowing and seeing they were then being repaired or of a pedestrian using a walkway while it was in process of construction. In such instances, "when one traveling along a public street sees, or otherwise receives actual notice, that such street is out of repair or torn up, he must look for obstructions and other dangers and avoid them if he can do so by exercising ordinary care," (Welch v. McGowan,
Bean had often visited his brother-in-law and knew that a sewer ditch was being dug. He was unable to explain his fall or to say how or why it happened. Though he had seen the men working, their material in and near the work, the barricades and piles of dirt, he had never "looked over the ditch." As he drove into the driveway he saw at least one of the "bomb lights" in the street, as it was necessary for him to drive around it to enter the drive. He repeatedly stated that he knew a ditch was being dug but "didn't know whether it came up to the parking" or driveway. When he was about to enter the car it was dark and there were no lights, barricades *980 or piles of dirt and he "didn't know there was a ditch there." The city contends this evidence, together with the facts of the occurrence, conclusively demonstrates that he had knowledge of the nature of the improvement and of the danger incident to the use of the premises and further that he did not use his faculties or exercise ordinary care for his own safety.
The city had a right to repair the street, but the fact that it was being repaired did not preclude Bean's use of it provided he used ordinary care to avoid injury from known or obvious defects or dangers. The fact that he possessed some [396] knowledge that repairs were in progress but did not know their extent and had no notice of the proximity of the ditch to the driveway when there were no lights or barricades at that point was a circumstance for the jury to consider in determining whether or not he had proceeded with the required degree of caution for his own safety in view of his present surroundings and his past observations. Smith v. St. Joseph,
So it was with Bean's assuming he could use the driveway with safety. He knew of the sewer ditch but he did not know it came up to the driveway and there were no warning signals. Under the circumstances he was entitled to assume the way was safe. That assumption, his prior knowledge and all the surrounding circumstances were to be taken into consideration by the jury in determining whether or not he was entitled to recover. Perrette v. Kansas City,
The city also contends that the plaintiff's petition does not state a cause of action and that the court committed error by giving instruction number one and in admitting in evidence portions of a city ordinance relating to the protection and use of streets and sidewalks. The factual background of the city's argument is this: The plaintiff's petition set forth the facts and circumstances of his accident and plead that the city dug the ditch which it permitted to remain open and unguarded. He then specifically plead and set forth that portion of the ordinance relating to the protection and use of streets and sidewalks which requires every person making an excavation in or near a street, sidewalk or driveway to enclose it with barriers not less than three feet high and to place red lights at each end of the excavation in such a manner as to light the excavation from sunset to sunrise. The plaintiff offered and the court received the ordinance in evidence and then instructed the jury that if they found the ordinance in force and the facts hypothesized in the instruction and as required by the ordinance, then their verdict should be for the plaintiff. The city says the ordinance was a legislative enactment, a police regulation for the guidance of the conduct of the citizen and not for the city's guidance, that the city incurred no liability for failing to observe or enforce its own ordinance and for that reason it was not admissible in evidence, the city's liability could not be predicated on its breach and, therefore, the petition did not state a cause of action and the instruction based on it was erroneously given. The plaintiff admits that his cause of action is based in part upon the city's failure to observe the ordinance but contends that the city was acting in its corporate or ministerial capacity and was subject to the same rules of tort liability as are imposed upon the general public and, therefore, its violation of the ordinance was negligence per se and a proper foundation of liability.
Since the plaintiff's petition alleges that the city maintained an open, unguarded ditch it states a cause of action for common law negligence irrespective of the allegations with reference to the ordinance. [397] Perrigo v. City of St. Louis,
[3] On the other hand, municipalities are not liable for a breach of duty with respect to their governmental functions (38 Am. Jur., Sec. 572; Richardson v. Hannibal,
We have not discovered a case in which it was specifically sought to impose liability on a municipality for failure to observe its own ordinances in the manner attempted here and under similar circumstances but Mehan v. St. Louis,
The cases upon which the plaintiff relies do not announce a contrary principle. In most of his cited cases a violation of a city ordinance was relied on for the purpose of imposing liability on an individual and not the city. Borack v. Mosler Safe Co., supra; Murray v. Missouri Pac. Ry. Co., supra; Wendler v. People's House Furnishing Co.,
[4] This is not to say that the ordinance is not admissible in evidence in any event and under all circumstances. There is no difference in an ordinance as evidence and other evidence. If it is relevant and material or tends to prove any issue in the case it should be and is receivable in evidence for that purpose. For example, the ordinance was competent in the Sallee case as bearing on the issue of whether the city had removed the dead horse within a reasonable time after notice of its presence. An ordinance may in and of itself tend to show or charge the city with notice of certain facts. Perrigo v. St. Louis, supra; Myers v. Kansas City,
It was not error for the court to refuse the city's instruction A with reference to Bean's proceeding to use the driveway with knowledge of its defective condition because that matter was fully covered by given instruction seven. But upon a retrial of the case the facts hypothesized in instruction C should either be included in instruction seven or in a separate instruction, as the city is entitled to have so much of its theory of contributory negligence submitted to the jury as the evidence warrants. Cordray v. City of Brookfield, supra.
Because of the noted errors the judgment is reversed and the cause remanded. Westhues and Bohling, CC., concur.
Addendum
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All the judges concur.