*1 lengthening this dissent point no I see ceptible challenge on several constitu- constitu- of these other accomplishment by exploring some The grounds. tional say that it to may beyond power tional issues. Suffice objective its be re- questions with additional accom- raise serious City. methods chosen Furthermore, I valid, spect to ordinance. this plish purpose, even otherwise entirely pow- subscribe statement may municipal on do violate limitations challenge above that process equal the conclusion in the due er embodied expression probably freedom of and fed- based on protection clauses of State theory is may con- unavailable eral It violate constitutions. is commercial posted by property owner provisions prohibiting undue
stitutional speech. difficulty the view I have no expression. on freedom of restrictions posted by those in when may authority And it distribute to accom- estate are commercial plish contrary the real business purposes to basic its speech classify it hard to a mere but find governmental power of how must theories family single statement the owner of be divided. residence that he to sell his house or wants only purpose sought “The seems not open inspection that it as commercial City’s power well within the speech unprotected. and hence commendable, highly perhaps, even City’s viability. essential to the continued BARDGETT, J., concurs. challenge expres- A on based freedom of sion would seem to lack be- substance
cause of the commercial nature
expressions sought to regulated. be
“The originally ordinance as enacted is
quite broad in coverage. its appears It
regulate areas of the which do not need regulation prevent blockbusting, GERMAN, Appellant, Norman A. applies and it property to brokers and owners who not engage do in block- CITY, Missouri, Municipal Cor KANSAS busting Thus, well as to those who do. poration, Construction Com may process not meet those due stand- pany, Corporation, Respondents. ards requiring legislation to be reason- No. 56584. non-arbitrary, able and may and it vio- equal protection late by being limitations Supreme Missouri, Court However, ap- over-inclusive. there does Court en Banc. pear tendency uphold be a municipal June 1974. legislation directed ending discrimina- Rehearings July 22, 1974. housing tion in Denied and eliminating block- Therefore, busting. depending upon the
amount of willing discretion a court the legislative body, allow original may upheld.
enactment be The amended
version is scope narrower objectionable seem to be much less grounds arbitrary or unrea-
sonable action or over-inclusiveness. It
does, however, present a problem as to legislative body established
sufficient standards for the administra-
tive agency’s guidance in applying it.” *3 Clark, Hardy, H.
David David K. Kansas City, Shook, appellant; Hardy, for Ott- man, Bacon, City, Mitchell & Kansas counsel. Wilson, Counselor, City
Aaron A. Robert Counselor, Dakopolos, A. Associate Clark, Joseph Hachey, Asst. R. Thomas C. Counselors, City, respond- Kansas for ent, City, Kansas Missouri. Douglas Del- Knipmeyer, H.
Lowell L. Smith, McCann, semme, Fish Knipmeyer, & Tri-City City, respondent, Kansas for Co., corporation. Const.
HIGGINS, Commissioner. 1, 1972) January Appeal (taken pur- entered for defendants judgment the close verdict at a directed suant to action for in evidence injuries and $100,000 damages personal wrongful death damages for $50,000 his wife. was driv- 20, 1968, plaintiff January
On as a his wife motor ing his vehicle head collided the vehicle passenger when near crest vehicle with another Trafficway, Kansas hill on 63rd Street City, Missouri. construc- alleged: that certain
Plaintiff sec- being performed tion work Trafficway question tion of 63rd Street generally the work consisted and that converting notice, from a given adequate street two-lane was not street with the carrying warning change northern lane indication of deceived, westbound traffic the southern lane traffic routing but instead was carrying lulled, deluded, believing eastbound traffic into a four-lane and misled into street with the northernmost two westbound traffic in both the two carrying one-way permitted, westbound traffic and northernmost lanes where- carrying westerly two southernmost lanes one- drove automobile way traffic; immediately adjacent contract to the north- proximate with defendant defendant lane and as a direct and ernmost Tri-City general en- contractor result of defendants’ was caused gaged charge construction sustain head-on collision with vehi- work; duty lane; being that was the cle easterly driven the same provide controls, directions, negligently warn- defendants “each and care- ings safeguards devise, construct, furnish, lessly motoring pub- for the failed to *4 street; locate, lic traveling prior emplace, the that on and maintain and unob- January to prog- signs, signals, markings, had such barri- construction scured point required ressed to the and necessary that all addi- cades other devices were give plain- tional paving completed, thereby had to westbound such as been motorists creating notice, roadway upon reasonably adequate warning a four-lane tiff change routing one-way continuous indication of the in westbound travel in traffic place; the that negligently two had taken and care- northernmost lanes and continuous one-way lessly pavement eastbound travel caused and allowed the in the two south- stripes present appeared markings ernmost lanes be and which were pos- to and was sible; mud, sand, that to with and become obscured defendant”’Tobin Construction Company (no permitted other remain in condi- longer a debris and to such party) tion; negligently carelessly travel the failed motoring public all and in four * * * supervise with lanes the control Safe-T- two northernmost and lanes carrying Corporation one-way Flare Rental traffic and Safe-T-Flare westbound and signs, furnishing, having markings, Incorporated their and other Service devices emplacement so motorists, and maintenance of barricade informing west bound and devices; negligently the two and care- carrying lanes ‘blinker’ and southernmost one- way lessly traffic failed coordinate each other having signs, eastbound and with markings, and other and other devices inform- with each of the defendants so [no motorists; ing longer parties and the with defendants this action] Department City permitted Highway Tri-City Kansas and trav- Missouri State notice, provide el motoring public adequate warning the only the the in traf- change two northernmost aforesaid lanes with the northern- indication of the carrying routing.” most those lanes two west- fic bound immediately traffic and the ad- lane City generally denied Defendant Kansas' jacent traffic, thereto carrying eastbound petition pleaded defenses thereby changing routing the traffic contributory negligence immediately adjacent to the northern- Tri-City immunity; generally defendant most lane from westbound traffic to east- pleaded petition contributo- denied the traffic; bound that defendants Kansas ry negligence. City or, knew in the exercise ordinary care, should have known of many years Trafficway For 63rd Street change routing and that two-way, running was a two-lane street dangerous create unsafe and con- paved generally Its width east and west. dition for westbound motorists unless rea- feet there a was 23 was shoulder sonably notice, adequate or indi- warning, payment. defend- each of the In 1966 side cation of the given; condition was ant Kansas with defendant contracted median, tip the paving, grading, yond widening, east Tri-City for the Street, pavement and of mud on the of 63rd noted film curbing section per speed to reduced 25 to miles roadway, into four-lane then a two-lane per approximately hour from the 35 miles end of the Blue roadway, between east traveling he right-of-way hour had been west Bridge River markings did time. Plaintiff not see Highway 435. At line of Interstate changing from been to indicate the road time of the accident the work sawhorse four to two lanes. He observed completed that 63rd extent Street light open to barricades devices stacked roadway four-lane undivided blocking no median barricades public saw and used over most of side He portion project the lanes on either of median. of the accident east looked mirror when into his rear-view From a short east of scene. distance the median scene, one-eighth about mile east of beyond scene west tip and him noted an automobile behind separated by four a di- There also a car same viding median or island. There was lane. center passed the outside lane he of the median crossover between tip. point approximately At project. scene the west end halfway to hill the crest of the 20, 1968, January On and his occurred, car again noticed a collision wife left home in Louis at a. their 6:00 St. lengths three or rear four to his and a weekend visit m. same crest lane. As reached the *5 plaintiff’s with Plaintiff brother. traveled hill, “popped of the car an eastbound white on Highway west 70 to Blue Interstate right the over the hill” swerved Boulevard, Ridge drove south to 63rd turned of the Plaintiff shoulder median. Street, proceeded on over west 63rd right car as the white swerved eight he which had not to ten driven median, pickup to the trav- he saw a truck months. had his brother on He visited eling easterly the white immediately behind previous had occasions which 63rd applied and came car. Plaintiff brakes two-way been a street lane with one into head-on with the truck. collision each At direction. time of the acci- the traveling behind Kenneth was Small dent, m., the sky 10:00 a. was overcast right. plaintiff in the lane there was a drizzle. Plaintiff’s windshield Small, brother, travel- Don Kenneth’s was clear, his lights and windows were the lane. ing behind same off, and his he vision was As unobscured. at 1-435 They 63rd entered Street passed through the four-lane undivided lengths proceeded car behind few west Street, section 63rd east of accident the to 40 plaintiff. driving They were scene, plaintiff in the traveled inside west- gain per did not seem miles hour and lane, e., bound next cen- i. the lane to the Both respect plaintiff. ground lose with ter line dividing the west- eastbound and be- Street men were familiar with 63rd change bound traffic did not lanes. He Bridge. River and the Blue tween 1-435 lanes time entered from the he 63rd any accident site. Plaintiff did not recall Small, north- traveling the Kenneth signs along the side of street as lanes, re- four ernmost of the undivided approached except speed he the median Way on Traffic” called “Two sign. limit Neither did recall a he double tip; it was near the median shoulder yellow pavement of the line on east a dia- recall “fairly He did not dirty.” strip. painted median He lines did recall Lane,” any mond-shaped sign marked “1 dividing lanes two westbound from Don median. other east road- two eastbound lanes on the four-lane same Small, plaintiff and behind way traffic-directing approached east of the As he lane, any median. did recall the accident. morning of signs on 63rd the be- proceeded the median and west me- signs along barricades on the Mr. Nichols did not any Kenneth Small saw recall westerly roadway; except dian but none on Don did 63rd Street as he drove brothers, square sign dirty. any not see Neither did barricades. Both median, approached any yellow pavement he recall lines on the saw within coming them the south two to three hundred feet toward on median. He saw on the using side of the median the southernmost barricades median painted any pavement but none of the Neither recalled lines across lanes. lanes. roadway; on the both road described the Weidemeyer Patrolman Richard of the “dirty.” Department investigat- Police crest of plaintiff approached the As ed the collision. he arrived at the When car hill, the white Small saw Kenneth scene, police two officers were or three shoulder, “split sec- swerve present. diverting traffic officer One pick- plaintiff collided with ond” later around the onto the southern scene new lane same up. Don remained Small scene; an- lanes at a crossover west to the colli- just prior until with diverting other was traffic to the southern proper in a thought he was sion and lanes at the of the median east of the changed Don Small for westbound traffic. Weidemeyer Patrolman scene. observed saw the when he to the northernmost lane sawhorse barricades east of the scene near appear on the shoulder white car paved the median and also south Both brothers went plaintiff’s vehicle. portion roadway. He noted a dou- help heard alongside the collision yellow ble dividing line southern two God, thought I it was say, “My lanes the two northern one-way.” portion four-lane of 63rd of the medi- east Joseph A. traveled 63rd Street Nichols an tip. yel- He noted that the double frequently and familiar the area. separated low line northerly curved until it driving in question At the time northerly two lanes in the area of the westerly in lane and ar- the northernmost tip. partially The lines were ob- the colli- rived at the scene moments after mud, sand, scured and water: line *6 As Nichols neared the median sion. Mr. Weidemeyer “hard to see.” Officer tip, a motorist eastbound on the north side sign near the only one road observed of the median diverted him to the south . scene, sign, thus: diagonal one-lane <^> by flashing lights. of his side the median following “quite dirty.” day It was On the thought flagged the Mr. Nichols man who accident, driving home from the while and diverted barricaded him left car and church, rectangular sign he observed a street, police after which the arrived. the north of side near the me- thought the me- He also the lanes south of tip. dian legend, “two-way It bore the dian were for traffic he because traffic”; dirty. Weidemey- it was Officer coming saw toward him those er was asked whether he had observed proceeded cautiously Mr. Nichols lanes. prior eastbound traffic south of median parked into the and south lanes auto- 20, to January Objection 1968. was sus- mobile on the shoulder north of the two prove tained and to that offered south of the lanes median. Nichols Mr. officer, answer, permitted if to was asked observed east- state he had observed eastbound traffic in prior bound traffic south of the lanes south of the median on December 20, Objection ques- January 1968. 31, 1967, 7, 1968, and on January and that sustained, tion was and offered to there were no barricades across those two prove Nichols, that permitted Mr. to an- Weidemeyer lanes. Patrolman placed the swer, would state he had observed east- accident scene about fifty one hundred bound traffic of south the me- one seventy-five hundred feet west of the dian within week one to the accident. crest, hill and that there were one hundred
141 Respondent City contends that Kansas behind feet of marks twenty-seven skid di plaintiff’s allegations of breach relate were Both vehicles vehicle. rectly traf regulation of and movement of of the two lanes the southernmost fic; function, governmental is a that such The officer estimated the median. it, municipal corporation, and that plaintiff was at the that tests made scene in tort for connec impact. liable per miles hour traveling at 42.8 mission to read last done five or six weeks power three were way General tributorily negligent as a matter of law defendants moved for directed verdicts City, alleging generally ary verdict after November grounds; duty defendants Plaintiff offered but was At the conclusion of this evidence, both Ralph that he failed to owed him as admissions closed hundred sustained without and the area 1968; and Superintendent J. was entered hand Blackmore, by defendants, also asserted the defense jury was feet to immunity. portions brooms to defendants. 1967. the median prove accordingly. directed to Vice the southern lanes Tri-City had decision from of east; specification of clean defendant prior to breach The President judgment refused that it was Defendant deposition return a and motions Janu- road- used Tri- con- per- and and for tion 2d 462 (1935). of St. public city clean within limits Gillen v. Louis, was a part of boulevards, trafficways, parkways; Missouri; S.W.2d 446 “shall have Section (Banc City’s (Mo.1961); (1937) Blackburn Defendant Kansas Kansas Mo. underway with a * ; Louis, duty to maintain 1932); public 341 1(16), 63rd 301, City * * City, safe condition shown (Mo.1963); Fette v. power 121 Mo. governmental municipality where the collision occurred 332 of St. street within at that time ** Carruthers public highways, Mo. 1073, Mo.App. a construction * City City provides Louis, * 145, City * * Auslander v. the limits 63rd Street admitted that of St. for travel v. City’s 56 S.W.2d function. See 345 S.W.2d (1938); Kansas that the City of St. place. Louis, 366 St. corporate Charter, * * * project streets, Louis, Metz S.W. City * * The 778 69 32 [*] full, complete and and exercise have principal plain- issues are whether same, regu- control over the exclusive tiff’s evidence was sufficient establish thereof, late use jury questions to duty, breach cau- open, safe maintain same in defendant; part sation on the of either * * Plaintiff, Mr. clean condition *7 so, whether contribu- Small, Small, and Don Nichols, Kenneth torily negligent aas of law. matter over operated who their mótor vehicles Appellant place ques- in contends defendant Kan- that the the time area di- City yellow sas lines to nondelegable duty tion, him the to see owed not did from traffic reasonably maintain its streets in safe con- them and other rect or divert to two highway dition the public; for travel that Kan- undivided four-lane City lanes, one duty by failing sas breached to one westbound that for northern Weidemey- provide adequate warning and maintain de- for Officer eastbound traffic. afoot, er, to while looking vices indicate that for traffic the two lanes controls as strip of the median them carrying were did lines but described see such mud, sand, wa- traffic, both partially westbound obscured that road such in saw no the collision Plaintiff and Don Small caused ter. site; signs into Kenneth was deluded and misled near collision sign believing one which for Nichols inside northern lane was Small and saw Mr. Weidemey- they dirty. westbound as Officer described er, investigation, developed in the course of his saw rule which cases arose dirty; one of sign which he described as out situations wherein the driving through a saw second while claimed to been as injured have the result day, municipality keep the area the it was following failing to Small, dirty. Plaintiff, reasonably Kenneth and Mr. a streets safe condition for However, Nichols observed barricades stacked travel. is also well established a tip; they city arising none is for saw across liable its torts out employees southern lanes as faced them while of the acts of its while engaged westerly; streets, driving barri- constructing Don saw no maintain Small its [or ing repairing The Small east- cades. brothers also make noted streets] * * * reasonably bound traffic in me- them lanes south safe for travel. Therefore, dian immediately prior city care, time due and at the a must act with only the collision. free from dan the streets gerous doing any act conditions-but also A jury could find from such repair open for them and maintain them east evidence that 63rd Street area traffic, law and under well-established inadequately the collision site was of Missouri it liable for torts result is its marked to to a westbound motor- indictate ing carrying from done in activities out two-lane, two-way ist that there was traf- regardless duties of the name these fic on from the lanes north of the median And, they may as stated be called.” west; tip its that the road Louis, City supra, in Auslander St. number, condition, inadequate were or a difference l.c. 782: “There is * ** location such purpose; for that the lane physical condition of between obscured; markings were that the southern public. The a street and its use barricaded; all were not keeping of in a condition reasona street misleading impression created a bly thereon reference to safe travel has westbound motorist southern lanes physical condition, and is different open half of a highway divided regulation traffic on matter than the travel by eastbound motorists. such street.” controlling respect law with This falls case within stated City’s liability is immunity exception governmental immunity stated, Myers City Palmyra, 355 S. doctrine. Missouri, (Mo.1962): W.2d 18-19 “In states, City
as in municipalities Defendant Kansas had established a most not lia are public portion general arising ble torts out four-lane over rule for improve- area governmental what called under construction functions * * ment contract between and de- However, *. the construc tion, westerly part repair, Tri-City. Only fendant and maintenance of be streets end of the corporate proprietary as a or from the median to the west classified * * * function, two-lane, two-way project as a ministerial was limited to * * * function, demonstrated, reasona- jury travel. As negligent in exception bly function could for which find Kansas there signs, lane *8 adequately by that a municipality rule is not liable mark * * * etc., torts, markings, barricades, for of the transition its under law two-lane, two-way traf- primary non-delega- this ‘it is from four state lanes to plaintiff duty ordinary city ble of the fic to warn motorists such as to exercise traveling that the keep reasonably westerly care to its in a into the area streets safe ** * travel,’ roadway condition for to this reduced from four lanes activity two-lane, two-way negli- immunity the doctrine lia traffic. Such of deceptive bility gence dangerous apply. for torts does The above created a not
143 of wrong in plaintiff because plaintiff was misled condition find traffic, reasonably could jury abut injury. collision and into City Kansas was there because defendant him to be negligently misled and deceived plaintiff that determination This there. City defendant Kansas against amade case testimony Weide- of witnesses utilizes the Palmyra, of Myers City In addition v. in contained meyer and Nichols immunity supra, where the Appellant contends such proof. offer of City’s in apply to the acts doctrine did of no on the issue evidence was admissible make them removing snow from streets of the inadequacy of the tice to defendants support of sever passable, plaintiff has the medi of on the lanes south barricades similar plaintiff made a al cases City supports Respondent Kansas an. City’s submissible case but ruling urging that offered court’s in violation failure to barricade or warn testimony not fall within does refused in a duty keep its its streets permitting exception general to the rule travel, g.: Treon v. e. safe condition existing testimony accident 704, City 708 Hamilton, 363 S.W.2d City, 342 Taylor Kansas condition. See v. in failure to warn or barricade (Mo.1963), 562, 109, (1937); 112 566 S.W.2d Mo. area, deceptive view of the nature of the Co., Logan 340 Boyd Dry Goods v. Jones roadway, continu recent relocation of 1100, 348, 104 (1937). Mo. 353 blacktopped except for ditch ance of areas Mexico, es; 224 Mo. City of Williams v. the lanes Critical issues were whether 1224, 992, App. 994 un (1931), 34 S.W.2d appeared open and south of the median point street led to a near where barricaded so, complete eastbound bridge plaintiff that been removed so such and de- condition misled City precipice; drove over a Chance v. plaintiff traveling ceived into a lane north 24, 1, Joseph, Mo.App. 26 St. 195 190 S.W. carrying of the median that was eastbound city at end failed to erect barricade (1916), testimony The offered but refused deceptive appearance of street where Weidemeyer Officer and Mr. Nichols “precipi of a street ended at the crest knowledge bore on that defendants’ declivity”; City, tous Boyd Kansas 291 v. susceptible easy barricades were removal 622, 1922), (Banc Mo. S.W. and that eastbound traffic had used city duty held to have breached previously. testimony southern lanes This reasonably safe for travel was not to show the of the lanes use opened bridge that it and maintained position traffic and plaintiff light adequately and did not collision; barricades at the time of the roadway; girder struck a located above Nichols, German, Small, witnesses Kenneth supra, l.c. Metz 81 S.W.2d Kansas v. e., supplied evidence, Don Small i. 465, 466, it con negligent because city held there present were no barricades roadway and opened public structed and the southern lanes at the time of the colli- an unlighted curb of island struck per- sion. The situation is similar of an intersection. located the center use pre-existing mitted of evidence of con- ditions signal defective cases on railroad akin Plaintiff’s situation the issue knowledge, of notice and Willsie Bros. Perkinson in Nimmo Thompson, 359 Mo. 223 S.W.2d Co., (Mo.1935). Const. 1949), proper- (Banc would have been his car struck when injured Plaintiff was ly purpose admitted for such this case. improve a street under excavation in City Thus, circumstances, between defendant ment contract these defendant com Louis and defendant construction duty, had a breached St. the excavation duty, pany. Plaintiff contended injured of dan lighted to warn True, have been occurred should the collision breach. *9 traffic, gerous nonregulation appealed governmental Plaintiff from a conditions. involuntary liable; and received a new function for nonsuit which it not and is trial on also question a submissible whether the c.f. Watson Kansas S. signal lights banc), W.2d there (Mo. barricades and were down at l.c. and, place question was no changing, and construction or and time route down, city timely holding that (or whether the notice “the failure to placing replace Equally Manchester to place) them to the incident. on North persuasive foreign question warn that jurisdiction from is the intersection a T Schmedes, regu of Austin intersection is a form traffic 154 Tex. lation, direction, control, 326, 52 hence a (1955). A.L.R.2d 680 Schmedes, traveling Plaintiff function.” while two-lane, one-way, in the of a western lane Appellant contends that defendant Tri- roadway, northbound collided head on near City negligently failed main- to erect and traveling crest of hill with a vehicle adequate tain barricades across the lanes south The western lane. second keep south of the median and failed to point vehicle had entered the street roadway in a condi- clean a two-way where it was street when tion, impression creating thus point he reached con where the street as he reached the area of roadways by park sisted of two divided previously median that con- Street, 63rd way, he found the two western lanes be lanes, be- sisting of four undivided barricaded, only intersecting coming two lanes highway a divided point. street at that There warn were no westbound and two lanes for ing signs, south, and the continued motorist traffic; Tri-City its breached thus using the western lane on the east side of duty keep the street to erect barricades parkway, plaintiff. into collision with clean, caused and that such Supreme The Texas, Court of in affirm collision was deluded ance of judgment, city held the appearance of by open misled duty owed a signs to warn street users the absence of visible southern lanes and “of dangerous conditions, immediate other northern thinking the markings into physical than obstructions, defects and cre one-way were for westbound city ated performance of its plain- Respondent contends proprietary improving function of its jury ques- failed to create tiff’s evidence * * streets duty The a city *. de- asserting he failed to establish tion improve erect at the site street duty barricade owed fendant does police pow ments not arise out of its clean; that he roadway and to er to regulate control and traffic which it duty, failed to show breach may perform negligently or at all with neg- alleged that he failed to show out risk of liability, imposed proximate ligence of defendant was the protection law for the public against of the cause of collision. dangers perform immediate created proprietary ance of the function of main The contract for construction taining improving streets. Tri 63rd Street between performance fact duty that the re City provided: “It the intent these quires regulation an incidental of traffic possible specifications provide the best does duty not detract or change from the through-vehicle traffic service to move gave character of the function which abutting properties and the ments and to danger.” rise to the supra, l.c. cooperate agen contractor shall with those City’s pre 330. Defendant citations responsible operations for traffic cies viously recognized in connection with its temporary provide maintain such shall contention' point not in are because facilities, signs, flagmen, bar deal with incidents arising regulation necessary complying ricades as become
145 since and that “old” 63rd Street Tri-City compassed admit- specifications.” with these part of street was not a portion of the that from Safe-T- renting light barricades ted improvement, the accident on the contracted placing them Flare Rental Service Tri-City place at a over which occurred site; by the job refused offer argument This overlooks deposition, had no control. proof via Blackmore’s Mr. Tri-City that Tri-City charge and evidence shown plaintiff would have that provide adequate to negligent made a to close the decision southern the lanes south across prior to barricades than of 63rd Street more month Tri-City contract- median, very portion showed the These matters collision. plaintiff By such failure pro- ed to construct. Tri-City responsibility assumed driving misled into into the south duty and its to viding barricades resultant of the median. adequate in a manner. do so careful Bird, Dry Berry Emery, Thayer See Co., 808, 41 35, 211
Goods 357 Mo. S.W.2d Tri-City argues that also (1948). from Mr. Blackmore’s can have no benefits deposition on the of control issues testimony plaintiff, Nichols Mr. knowledge evidence was not because such Tri-City’s and Kenneth that Small barri- Appellant court admitted. contends the tip cades were rea- stacked on the median depo denying erred in offers from the his permits Tri-City sonably the inference that Blackmore, that this sition of Mr. placed permitted them there or them be to in de court such matters should consider blocking moved from lanes. southern his case. termining made By may conduct be said that Tri- duty breached its supply adequate plaintiff offered to read from When barricades, e., prop- that Tri-City i. did not admission deposition of Blackmore Mr. as erly place provide warning them to that is “there Tri-City, trial court held by the southern lanes were closed or that is a man- showing Blackmore no that Mr. subject removal; offered and the the cor- officer, managing agent, aging testimony but refused showed constructive Tri-City, and poration, of the defendant Tri-City notice to that the barricades capacity having therefore an individual not been moved on occasions. corporate statements defendant to bind place deposition else.” made testimony
Plaintiff’s offered but refused
deposition
via Mr. Blackmore’s
have
is,
by Tri-City
There
contended
Tri-City’s
duty
shown also
assumption
aof
ruling, authority
support of
court’s
keep
roadway
clean
deposi
statements in a
proposition safe for travel in that Mr.
stated
Blackmore
binding
an individual are
tion
Tri-City
roadway
cleaned the
employer as admissions
corporate
power
in the area of the
brooms
See,
prove negligence.
against interest to
and to the
six
before the
east five or
weeks
Co.,
Dubinsky Realty
133
g., Meyer v.
e.
respect,
Dav
collision. In
see
this
Grab
;
1106,
(Mo.App.1939) Kolb v.
1110
S.W.2d
Co.,
Mo.App.
Const.
(Mo.
Corp., 219 S.W.2d
Howard
(1937),
recovered
However,
rule is
a different
App.1949).
slippery
evidence
that the
permits the ad
applicable
this case
permitted
accu
due to mud defendant
testimony
question.
mission
site,
job
being
mulate on
a breach
same
President
Vice
Ralph
Blackmore was
J.
duty
ordinary
defendant
use
Tri-City
Superintendent and General
highway
care
safe for
an
signed
deposed. He also
he was
when
Co., 233
Dean
See
Const.
Eidson v.
Tri
interrogatories directed
swers
820 (Mo.App.1950).
posi
In
were in evidence.
he was
Superintendent,
argues
the collision oc-
tion General
project,
part
supervision
curred on
63rd
that en-
of the 63rd Street
Street
*11
keep
jury
he
of
testified
use
brooms to
and unobscured. A
could
clean,
the area
and the
find that
by
decision to close
breached
duties
such
providing inadequate
These
southern lanes.
statements bore
barricades which had
Tri-City’s
cleaning
control over the
been removed from the southern lanes and
barricading
knowledge
by permitting
and its
stacked on
of
con
the median and
;
existing
markings
ditions
at the
the road
to become
construction site and
obscured
plaintiff
injured by
The situation is similar
and that
collision area.
Co.,
Kroger
that in
breach
that he was deluded and misled
Brown v.
344 S.W.2d
open appearance
80
of the
(Mo.1961), where statements from the
southern
lanes and
mark-
manager’s deposition
properly
store
the absence
visible road
of
ings
driving
wrong
into
into a
lane of traf-
knowledge
admitted to show defendant’s
fic and head-on
danger
using
involved in
soda
collision.
wet
car
Inc.,
tons,
Bowyer
Te-Co,
and in
310
v.
S.
guilty of
Whether
contrib
892,
(Mo.1958),
testimony
895
W.2d
unless,
utory negligence
jury question
ais
by plaintiff that
president
defendant’s vice
from all the evidence and
infer
reasonable
upon
told him
stone slab
plaintiff,
only
ences favorable to
rea
plaintiff slipped was in bad condition was
negligent
sonable conclusion
that he was
properly admitted
to show an admission
proximate
and such
was a
cause
an executive officer of defendant of its
damage,
Ryan,
of his
343
Bowman v.
S.
prior knowledge of an existing condition
618,
613,
(Mo.App.1961),
W.2d
619
Brooks
and to
defendant’s
show
control over the
Stewart,
(Mo. 1960);
v.
335
104
S.W.2d
offending condition. See
on the
sub
in determining
question,
case must
each
ject
depositions by corporate
officers in
be
on the
and circum
considered
facts
scope
authority
duty,
and line of
Eden,
peculiar
405
it,
stances
to Moore v.
Loyal’s
Exchange
Munch,
Auto
v.
153
(Mo.1966).
S.W.2d 910
628,
913,
(1951),
Neb.
45 N.W.2d
921
Kaufman
Baden
Mfgs.,
v.
Ice Cream
7 S.
Respondents
con-
contend
(Mo.App. 1928), Winegar
W.2d 298
v. Chi
tributorily negligent
as a matter
law:
Co.,
cago
Q.
(Mo.
B. & R.
trols, City of Richmond under Rohmann v. Thus, in this case Heights, defendant Tri (Mo.App.1940); 135 378 S.W.2d owed Co., the duties Silvey Railroad barricade Missouri Pacific adequately the lanes 1969); south of (Mo. the median 445 360 Counsell S.W.2d and to keep the (Mo.1968), traffic markings Rickenbaugh, clean 86 S.W.2d speed by exceeding Ed limit under On the issue of failure Rudowicz, (Mo. mark wards v. and heed lookout for road App.1963), of re traffic-di language ings : The evidence showed two spondent Tri-City, he sound the road recting signs failed to side warning, apply site, bearing horn he his way did not one east of the collision brakes, lane, go leg he did “1 Lane” the other the legend “Two-Way would have collided with the car had white Traffic.” Officer Weide- end action, two-way not taken he meyer driver evasive not see the did *12 judgment only away investigation had no how far the white noticed it during his scene, it, car he he did not it was when first saw and was upon a second visit pickup truck in see the until almost the and Kenneth dirty. Nichols Witnesses impact, he had judgment only stant of near sign no one Small saw speed vehicle, judgment dirty. the same of either and no This was and it was scene during pickup truck separating Weidemeyer distance sign missed Officer looking signs. vehicle. and white investigation on foot any traf did not recall Don Small Witness pleadings and contentions and the These evidence signs. fic-directing Exhibits contributory negli- present alleged evidence they es and, although signs; depicted the respect speed, fail- gence with to excessive content, existence, shape, tablished heed road ure to lookout for and conclude signs, they did not location of wrong markings, driving in the ques yet a fact plaintiff because there was lane, failure to take evasive action. ade they were visible tion of whether existing condi quate to motorists of warn speed: On the issue Mr. Stockman, Phillips 351 S.W. v. tions. See 40-miles-per-hour said he saw the German v. 464, Burris (Mo.App.1961); 2d 470 speed limit east site at of the collision Co., 226 Service S.W. Public traveling approximately time he which was (Mo.App.1950). 2d 749 approached the per 35 hour. As he miles tip and the film of mud observed Plaintiff, and the Mr. Nichols Smalls speed he pavement reduced his ques- area of Street over the 63rd drove per hour he maintained to 30 miles which of these a few Three tion within seconds. into “popped” the time the white car thought the two lanes witnesses Small, following Kenneth and view. Don way for westbound were one the median speed plaintiff, judged his 40 miles at 30 to was familiar Kenneth Small traffic. per All these showed hour. estimates as to which roadway unsure was speed plaintiff’s within the limit. Officer for the it should use. Thus was lanes he Weidemeyer speed estimated negligent plaintiff say was jury to whether hour, per skid 42.8 miles calculated from and reaction observation conducted; however, plain tests which he signs. tiff was not bound and concluded the four- painted lines on Moreland, Plaintiff saw Meier estimate. the col- 63rd east portion lane Street (Mo.1966). Accordingly, there 101[6] site, in his no lines but saw such jury speed, and lision was a issue on the issue of tip. he the median neared testimony or to his conflicting was resolution double Weidemeyer Bachman, described Pfefer jury. for the S. Officer point the median at a east of yellow line (Mo.App.1964). Nor was W.2d lanes the two southern speed tip divided any evidence there that at slower and then occurred, the two northern the collision would not have north- the two to divide northward jury question there was also whether curved thus investiga- noted in his He them plaintiff’s speed proximate cause ern lanes. was the they ob- foot, damage. and also noted of his tion on may respect be said with 1955). mud and hard to see. The The same scured Small stop. to failure honk or to brothers and Nichols did see Mr. yellow lines near the median reversed judgment Accordingly, the roadway. dirty condition of the noted the a new trial. and the is remanded for cause ' say
Thus, jury also for the negligent whether PER CURIAM: painted yellow and react lines.
to see HIGGINS, Opinion by The Division One driving in the On the issue C., adopted opinion as the Court wrong question that at lane: There is no en Banc. driv the time of the collision ing westerly in a lane intended for east FINCH, concur. JJ., MORGAN However, bound it has been dem onstrated that made a submissible SEILER, in separate concur- J., concurs deluded, case misled opinion filed. ring *13 driving and a deceived into in lane traffic; thought proper for westbound and BARDGETT, concurs concurs J., jury say thus it was for the whether SEILER, opinion separate concurring in plaintiff a for his viola valid excuse J- Allen, supra; Tener v. tion. See Rice v. Hill, supra; Goodyear Tire and Wines v. HENLEY, DONNELLY, J., J., and C. Co., Inc., and, supra; Rubber contrast dissent. distinction, in note that Roach v. Lacho, supra, allegation that there was no HOLMAN, separate dis- in dissents J., roadway deceptive, the misleading opinion filed. senting plaintiff negligent contributorily wrong because she knew she SEILER, (concurring). Judge side of the road. al- principal opinion,
I in the concur On the issue of failure to take real perceive though I am unable action; city’s evasive the Plaintiff first saw the principle in between distinction “popped” white car when it the hill the over warn present case to in the failure It right. crest. swerved to Plaintiff the lanes north plaintiff that westbound attempted traffic, pull right an two-way to his and did so median carried the in plaintiff estimated car three feet. white city’s failure to warn Just swerved, plaintiff pickup ap saw the v. Kansas Watson plied on which his brakes the collision followed. the street (Mo. 1973) banc plaintiff, at a According to end driving he did not have to a dead came she was get right-hand drop-off time to im- steep into the Ken lane. with “T” intersection neth seri- Small the collision as Both cases involve mediately beyond. described occur ring “split result- car driver second” after the white an automobile injury to out part of directly swerved. Plaintiff failure on get tried to over to from ing signs, right warning Thus, appropriate did it city not have to erect time. it is denominated jury say was for the regardless of whether rea- streets negligent keeping in or avoid suc traffic control my e., judgment, In swerve, sonably travel. jury ques cessful i. there was a safe for case is the avoid, present tion whether adopted had time to the view so, one com- and sensible contributorily enlightened whether he was more motorists of what negligent ports realities failing so to with the do. Jones expect Hughey, accustomed to have become (Mo. compliance way with warnings making from who have left turn those provisions highways 304.014 charge streets over sections regulations driving. are thereun- 304.026 municipalities; der or of principal Despite the bow which the opinion makes to the recent deci- Watson right half of a (3) When sion, supra, agree Judge I Holman closed traffic while under construc- that the two are in direct conflict. repair; tion or ,
HOLMAN, Judge (dissenting). (4) Upon roadway designated markings one-way traf- respectfully following I dissent fic.” reasons: exceptions None of the four statute Immunity Governmental appear appear here. Nor does complained by plaintiff All the acts drove left adequately concern failure to warn west- half of in avoiding emergency the road bound motorist that the is elementary situation. It that the viola- two-way median carried This tion of a statute negli- such as 304.015 control, being clearly in area of traffic gence se, e., per i. as a matter immunity doctrine of of law. apply city and the not be held could opin- principal liable. decision Plaintiff drive his intended to car *14 ion is direct en Banc conflict with our collision occurred. His decision Mis- Watson v. Kansas only excuse that he did not know souri, 56,432, September decided No. said lane constituted the of a left half 1973. designated two-lane road traf two-way
fic. That not a is lawful The excuse. Contributory Negligence statute comes in the classification of mal- prohibitum, um knowledge and criminal my It is guilty view that intent element essential thereof. contributory negligence as matter law. It has been said that order to estab “[I]n (among This other reasons) because he legal lish responsibility to drive was in clear violation of 304.015 RSMo § operate prac an automobile as close as 1969, V.A.M.S., admittedly since he was right-hand high ticable to the side of the driving on roadway. the left half of the way in that the automobile onto crossed statutory provision effect wrong side it necessary is not to show time of this occurrence reads follows: that the offender intended to across drive * * Upon “2. public highways all center line *. It roads sufficient oper charge show that sufficient width vehicle shall be while in of and ating driven half the road- automobile he an act committed way, except of negligence which auto resulted follows: lane, proper mobile not in its continuing (1) overtaking passing When anoth- crossing wrong over and onto lane.” proceeding er vehicle in the same Hulsey, Wood direction governing under rules (Mo.App. 1954). movement; For affirm indicated I (2) reasons placing When position vehicle for and lawfully judgment. when such vehicle is