*1 City Moberly, Municipal Bean, Respondent, Missouri, H.W. 38291. 169 S. W. Appellant. Corporation, No. Two, March
Division appellant. A. R. Marshall and Hunter & Chamier '976 *3 Hulen respondent.
C. M.
BARRETT, project sponsored W. P. C.—As a A. Moberly improved improving resurfaced and certain streets. In drainage relaying dug of a viaduct the sewer line ditch was parkway between the sidewalk and curb line Rollins Street. May 13, 1941, On injuries Bean fell -in ditch and for H. this a judgment $7,666.00 against Moberly. recovered On city tacitly appeal this justified concedes that Bean’s evidence finding had breached common law ways exercise due care in the maintenance and was, therefore, of its negligent, argues that its demurrers have should been sustained *4 because the evidence also guilty demonstrated that he was of con- tributory negligence a matter of law.
The ditch driveway intersected the to the Tedford home and at point fell. this Bean There piles were barricades or of dirt both north and of lights” south the ditch. There were “bomb at the edge of the piled street where dirt was light and a on either side of to drive, the entrance ditch, but at the east end of the where driveway, lights intersected the there were no or barricades accord ing jury’s finding. to the Bean visiting and his wife were brother- his driveway in-law. The was the vehicular entrance to his home. When they parked Beans first driveway called their car in the back of the car. brother-in-law’s Later Bean backed his car out of the drive while They his brother-in-law car out. drove his both went to the they Ray business district on errand. When came back stopped car his in the drive and let Bean out. He then observed that his car obstructed the sidewalk and it up occupied backed that space driveway in the parkway alongside next to and the east unprotected unguarded end of and ditch. About 8:45 o’clock the Rays men picture to walked and Beans started the second show. The Ray Ray ahead went car; to the Hubert around the east side get ear and Bean west As Bean was about to to the side.
car,
attempted
open
door,
but
car
he fell from
before he
parkway
injured.
into the ditch and was
Bean knew the
torn
parkway
up,
that
contends
repair
in a
progress
work
street
and dan-
and
defective
gerous
and,
condition,
therefore, his fall was caused
his own
failure to use his
and exercise due care to
and
faculties
discover
obviously open, ungular
failing
avoid the
ded ditch and
do
so was
guilty
such
of
conduct that
the court should have declared him
guilty
contributory negligence
of
as a
of
support
matter
law.
In
position
upon
instances of a motorist proceeding
relies
drive
knowing
seeing they
over and across streets
and
were then
being repaired
pedestrian using walkway
or
while it was in
process
instances,
In
traveling along
construction.
such
“when one
public
sees,
notice,
actual
street
otherwise receives
that such
of repair
street is out
or torn
up, he must look
and
obstructions
dangers
by exercising
other
and
them he
ordinary
avoid
if
can do so
care,” (Welch
McGowan,
18, 20)
when
with
knowledge
the evidence shows
one
such
not
does
use
proceeds on,
his
danger
faculties
heedless
obvious
and the
consequences,
safety
not
and,
he does
exercise due care for his own
therefore, cannot
Co.,
recover. Baranovic v. Moreno
Rohmann v. Richmond Bean had often visited his brother-in-law and knew that a sewer being dug. ditch was He explain say was unable to fall or why how it happened. Though working, he had the men seen work, their near the dirt, material the barricades piles over had never “looked the ditch.” he he As drove into the drive- *5 way lights” at street, he saw least one the “bomb of as it was necessary for him it to drive around to enter the He repeat- drive. edly dug knew a being stated ditch was he but “didn’t know driveway. whether it to the up parking” came or When he was about to it lights, enter the was dark and were car there no barricades
98b The there.” was a diteh know there piles or and he “didn’t of dirt occurrence, facts together of evidence, with this contends knowledge nature of the had conclusively that he demonstrates premises to the use of danger improvement incident ordinary care or that he his faculties exercise and further did not use safety. for his own it that was right street, but the fact repair
The
had
he used
provided
of it
being
preclude
did
use
repaired
not
Bean’s
defects or
from known or
ordinary
injury
to avoid
obvious
care
knowledge that
dangers.
possessed
fact
that he
some
no
and had
know their extent
repairs
progress
but did not’
were
driveway when there
proximity of the ditch to the
notice
of
for the
no
was
circumstance
lights
point
were
or barricades at
proceeded
jury
determining
or not he had
whether
consider
degree
safety in view of his
his own
required
with the
of caution for
surroundings
Joseph,
past
Smith v. St.
present
and his
observations.
City
387,
Mo.
108 Mo.
So was
could use the
with
Bean’s
safe
ty. He
up
knew of the sewer ditch but he
came
did
know it
driveway
warning signals.
and there were no
circum
Under the
way
assumption,
stances he was entitled to assume the
safe. That
prior knowledge
surrounding
and all the
were
circumstances
to be
jury
determining
into consideration
táken
whether or not
he was
to recover. Perrette
Kansas City,
entitled
162 Mo.
448; Heberling
Warrensburg,
W.
S.
Cassaday
City,
S. v. Kansas 948; Knight City, App.
Elliott
Compare:
981 question arises. Baranovic usually connection the It it in that safe. supra; Rohm ann Heights, of Richmond Co., supra; v. Moreno 26 S. W. Schmidt, 324 Mo. Sheffer v. (cid:127) petition not state city plaintiff’s contends that the does The also by giving court committed error in- of action and that the cause admitting city portions in of a and in evidence number one struction relating protection streets and sidewalks. and use of ordinance city’s argument plain- The background of is this: The factual the and circumstances accident petition forth the facts of his set tiff’s the.city dug permitted it remain the ditch which plead and that forth that unguarded. specifically plead He then and open and set relating the and use protection ordinance of streets portion the requires every person making an excavation in and sidewalks which driveway to enclose it with street, sidewalk or barriers not near high lights at end place than and to red each three feet less light a manner as the excavation sunset to excavation such from the court received the ordinance in plaintiff The offered and sunrise. they jury that and instructed if found the evidence then the ordinance hypothesized required and in the instruction in force the facts and as for ordinance, plaintiff. then their verdict should be the The the city says legislative enactment, regula- police the ordinance was guidance of conduct of citizen not for tion for the the the the liability city’s guidance, city failing incurred no for for its own ordinance and it observe enforce reason was city’s evidence, liability predicated could admissible not be and, therefore, petition did not a cause breach state on its erroneously given. on it and the instruction based action was upon that his action based in plaintiff part admits cause of is city city’s failure to observe ordinance contends that acting corporate subject or ministerial capacity its liability imposed upon general public as are the same rules of tort and, therefore, negligence violation of the per its ordinance se liability. proper foundation of petition alleges the plaintiff’s Since maintained unguarded ditch open, states cause of action for common law allegations negligence irrespective of the with’ reference to the Perrigo City of 185 Louis, ordinance. St. Mo. Louis, 217 But, of St.
30; Mehan v. Mo. S. 514.W. though acted its ministerial corporate, capacity even digging (Donahoe City, the ditch liability
571) negligence. its Wheat v. St. 179 790; 586; 38 Am. Sec. Jur., McQuillin, Municipal Corporations, J., L., Sec. C. Secs. 19 R. C. city’s obligation is to maintain Sec. The reasonably streets side in a may safe condition and if does not do walks having legal guilty breached its common law be to some mem and, negligent. public therefore, ber Whether has exercised reasonable care in the maintenance construction and legal duty and corporate enterprises is the measure of its test and liability. Myers 914; Perrigo City, Kansas Lindman Louis, supra; St. 271 S. *7 King 516; City v. De Soto, supra. of hand,
On the other
are
liable for
breach
municipalities
a
duty
Jur.,
respect
governmental
(38
of
their
functions
Am.
572;
648,
Sec.
Hannibal,
398,
v.
330
50 S. W.
Mo.
Richardson
84
508)
A. L. R.
the
and
of ordinances
enactment
enforcement
governmental
a
McQuillin, Municipal Corporations,
6
function.
2802; 38
Jur.,
Consequently,
Sec.
602-604.
Am.
Secs.
has become
definitely
city
civilly
settled that
is not
for failure to enforce
a
liable
Kiley
City
103;
ordinances.
v. The
Harman
Kansas,
of
87 Mo.
Louis,
Louis,
1102;
Mo.
38
of
St.
S. W.
St.
Sallee
137
152
615, 54
463;
Mo.
S. W.
Salmon
We have not which specifically discovered case in it was liability impose a municipality on for failure own to>observe its ordinances in manner attempted the here and under similar Louis, Mehan circumstances but v. St. and Sallee St. of appli indicate the In Mehan principle. piles cable the of case lumber were left an alley boy adjacent alley a fire station. walking through A the stepped nail in on one boards and injured. his One of the, assignments negligence city as to the was that boards and nails alley in permitted were an the violation of ordinance. plaintiff The support offered the ordinance allegation in evidence for his proving city purpose the that the was negligent. It was held that properly city the ordinance for excluded that purpose because a injuries private liable for persons resulting was not from failure regulations. police enforce its In the Sallee case was claimed to. city dead suffered a horse to remain in the street buggy over drove his Sallee dead animal fright horse became away. ran The ened and court received in evidence an ordinance requiring the removal dead Among animals. other things provided that dead by ordinance animals could not be private removed city’s employed contractor but had to be removed individuals c. “If said, 152 Mo. l. 622: purpose. for court The injuries complained for plaintiff to the not otherwise liable municipal corporation A cannot of, did not make it the ordinance so. of its to enforce enactment held liable in civil failure be suit having reference exercise own, legislative capacity, made only . But this ordinance tended police powers. of its . . under bound that the had undertaken to do that which was show anyone except prohibited the law to do. The fact that the ordinance matter, took neither added to nor contractor to interfere ab city’s obligation. from law makes it the the character of city to remove the within reasonable solute nuisance damage neglect time, resulting it liable for holds from duty. Therefore, the admission of the evidence was ordinance in only absolutely irrelevant, possibly immaterial and could not prejudiced liability part have the defense.” Because on predicated could not on its own be failure to observe its *8 legislative the hypothesize mandate was error for court to liability a Ryan City, on violation of the ordinance. 566, S. W. Loth v. Columbia Theatre
Co., 328, 94 197 Mo. S. W. 847. upon plaintiff contrary which the cases do a relies not announce In most principle. city of his cited a violation of ordinance cases a liability was purpose imposing relied on for the on individual an city. and not the Co., supra; Murray Borack v. Mosler Mis- Safe Ry. Co., supra; Furnishing Pac. Wendler People’s souri House Co., 165 Mo. McKee v. Peters, App. Perrigo
ference be it should any in the case prove issue material or tends to vant and example, For purpose. for that evidence receivable in is bearing issue of on the as in the Sallee case competent ordinance was a reasonable within removed dead horse had whether the may in and of itself An ordinance presence. after notice of its time Perrigo certain facts. notice of charge tend show City, Myers v. Kansas supra; v. St. say it to attempted, suffice can or need be rule No hard and fast the measure of not admissible present in the case as liability. and, therefore, of its substantive city’s standard of conduct 488, 500; Mehan v. of St. pp. 2 Wigmore, Evidence, Sec. supra. Louis, supra; Salmon v. Kansas city’s A for the court to refuse the instruction It not error driveway with knowl proceeding to with reference to Bean’s use fully matter was cov edge defective condition because that of its upon But a retrial of the by given instruction seven. case ered should either included in instruction C be hypothesized facts instruction, separate or in a is entitled seven as instruction contributory theory negligence much of its submitted to have so Brookfield, Cordray jury warrants. the evidence supra. judgment the cause of the noted errors is reversed and
Because Bohling, CC., Westhues and concur. remanded. *9 foregoing opinion Barrett, C., adopted PEE CUEIAM:—The . judges court. All the concur. opinion
as the Bagges, Appellant. 38241. 169 W. Fred State No. Two, March
Division