*1 which, plaintiff making handled the electrode in the insertion meager. situation and in retrial, view of a we should question. retrial, On rule the facts as manner may the electrode developed, handled af- court opportunity to properly question. forded consider the judgment should be reversed cause and the remanded. Frank, Hays, J., concur; P. J., so ordered. Douglas, J., not sitting.
Josephine Mengel, Appellant, St. Louis. 111 S. W.
(2d) 5. One, Division 1937. December Barker, appellant. Drury Durham <& J. M. Brown and for.
Edgar Way respondent. E. man and for Jerome Simon automobile, injured when an
FERGUSON, C. Plaintiff was col guest, riding as son-in-law, in operated by her which she “midway in the inter block located or slab lided She Louis. public section” two so damages injuries for the brought action this- n prays in the sum 'alleges The petition sustained.' had, Court $25,000: filed, whs trial in the Circuit action (cid:127) judgment of St. Louis. verdict therewith, was court, in accordance ' n n ' : appealed. plaintiff has assigns, given on the Plaintiff error Certain instructions in but, respondent here, defendant contends that as' *3 - the evidence, in the nature- of to the offered at struction demurrer did evidence, given, plaintiff have of all-'the: been close should error, in case, any, make a if submissible -and that therefore we Necessarily structions immaterial. first consider this conten tion. agreed parties upon, jointly approved, and a" short exceptions they agree, bill setting facts,
form of of forth the which prove.- advised, the we are This, evidence tends to done pursuant “To: 6, provides:- our Rule which enable this court to review refusing giving the action of it the.trial court in and necessary be shall not -to out evidence the .excep- -set thé bill of tions; sufficient to was shall-be -state-that there evidence tend- .but ing prove particular-fact parties disagree'as the or.facts. If the to what fact or prove, testimony evidence facts tends-to then'the of form, the witnesses shall narrative stated in avoiding repeti- and tion immaterial matter.” opiitting , tending is'stated that there to prove was evidence following morning August facts. “That on of at about the hour of one a. plaintiff, sixty-three woman about years m., age, was ill' the of of operated by seated rear seat an being automobile sedan Maurice Hyman, one her son-in-law, along westwardly Page and, Boulevard in Louis approaching St. and passing in Page tersection of Boulevard with Avenue, being Newstead both open improved public of Louis. the- That automobile which plaintiff seated with a collided concrete slab or of block concrete about five square four or feet eighteen about high, midway inches located in the intersection, a result of which plaintiff injuries.” collision substantial suffered “It conceded concrete that the slab constituted was. the base whére- - previously had located a standard, signal. traffic' August automobile during day or an evening That of first destroying light standard, knocking it collided with the down night of during the subsequent accident, it. That the first the-damaged August day August light stand- first, second, of city, leaving removed base ard had been intersection.” to show tending
“There on behalf of the was evidence offered night ob- plaintiff and at the time of accident visibility as properly lighted struction was offered' obstruction, to warn presence and evidence plaintiff tending on behalf to show that the obstruction reason, lighted, constituted obstruction properly to traffic.
“Page sev- is a feet and accommodates sixty Boulevard street wide conflicting eral as to streams of traffic. There was evidence the accident. presence of other traffic time and at the scene tending to show “On behalf of the there was evidence occupied that at the time accident forty operated hour being speed per her was of about miles thirty prescribed by ordinance, and in hour per excess of miles kept a proper seen the he driver could have obstruction had tending lookout. behalf of was evidence On there operated speed and being the car at a -rate prove that lawful the driver that the collision not due to on the of the automobile.” petition alleges, 'of the collision the date time
slab or “an center block concrete constituted intersection;” intersection, “it was dark said *4 warn- lights on” slab there were no said concrete block-or “or other knowledge, warning . ing plaintiff . . no notice and that street;” knew, or, obstruction was the that said in that “defendant by care, ordinary the of have known”" that con- exercise could the block in was crete or slab the center of the and “was by likely motorists, night, time, especially be run into before at injured, by ordinary care, of placed the was exercise have warning lights night given ... or otherwise have warning presence reasonable or notice to the motorists of street,” concrete the provide slab in but failed to “negligently proper lights on, night, and near reasonable said obstruction at reasonably-warn or to presence of said motorists intersection;” injuries the and the collision and directly by “were due caused of and defendant” general respects in the answer stated. The and was denial plea contributory negligence by of on of in that safety” for her own ordinary “exercise of care she have could inter- alleged slab in
discovered “the existence of the the auto- of have “warned driver section” time to thereafter cautioned riding” and “should mobile in which thereof she was . n brakes,” use his automobile and driver . . swerve said his etc., “so avoid” as to the collision. . concrete slab . noted conceded that the
It will be that “it was midway in high . square four or five feet about 18 inches previously base the intersection . whereon had constituted light signal.” oc standard, been collision located or traffic This August nighttime, o’clock 3. curred one a.‘M., about light which concrete base was standard had stood this struck by August “the 1st or night knocked down August August 2nd;” night 1st day thereupon (“on damaged light day August or the 2nd”) “the standard had leaving the concrete removed base in intersection.” respondent city position now case takes submissible was not made and its instruction in the refused nature of given demurrer to placing evidence should have been “because in maintaining signal regulation of traffic the governmental function,” relying exercise of citing City (en banc), Auslander v. of St. Louis Mo. (2d)W. 778; S. Joseph, Prewitt v. 334 Mo. (2d) 70 S. W. 916. recognizes The Auslander ease and reiterates rule, de- ‘‘ case,
fendant invoke would in this are not cities liable governmental negligence” mere in the exercise power per- or the nonperformance formance or functions. cases [See However, there is, the Auslander clearly the facts, cited.] distinguishable from present case. “light that case the bulb which illuminated” the north and south sides of an automatic elec- go signal” “stop tric had' out.” signal “burned This traffic maintained of St. Louis “at the middle” two purpose alternately “for directing traffic on one street and then light other.” The which the east regulated and west traffic was operating. “In early morning daylight” plaintiff about traveling south in an automobile driven they husband. approached her Ás in- they tersection discovered that the north and'south “was working” and “supposed” that signal light the east and west was “also working,” in which were They mistaken. there- proceeded fore into the intersection and way when “about half *5 across” came into collision with an automobile traveling west across the intersection. The driver of the westbound automobile testified he that when reached the east side signal “was his favor.” “Both drivers claimed not to have discovered
999 the other until too close the collision.” claimed to avoid Plaintiff “by signal that the collision was caused reason of failure of the warning” give proper signaling and was “not claimed street, device constituted an obstruction to the or injured by opinion any signal up collision with the The post.” sums injury way: plaintiff’s the ease in this “The from col- here resulted using lision with the of another traveler this same street complaint intersection, plaintiff’s is not the collision was by only signal itself, collision caused but that such could kept signal light would averted had the defendant working being so to have warned the other crossing. difference, however, is a physical
“There between condition public. keeping a street and its use in a con- street dition travel physi- safe for thereon to its has reference condition, cal regulation different matter than the of traffic corporate on such street. The one relates or proprietary powers city, while the other governmental or relates police powers.” operation was held that maintenance and signal the traffic city “an exercise of its power” and that the liable in was not ‘‘ ’’ respect. in this opinion Auslander cites and refers to cases wherein the plain injury
tiff’s signal from resulted collision with a post device, or or a part of device, which had become a mere obstruction in the following street. The are illustrative such cases. The town Bloomfield, Indiana, square erected a post, concrete twelve inches forty inches high, in a intersection, as a guide, street but no was other guidance of,” “for the give or to to, “persons notice using the streets ’’ held, which it stood. It was of Bloomfield, Titus Town 80 v. Ind. App. 483, E. that the post “a N. defect in the condition of the meaning street” within the of a statute re lating damages against to actions for “resulting injury any from defect in any condition of street.” The facts plaintiff’s based, Aaronson Haven, of New 872, are, Conn. 110 Atl. “maintained, the defendant . the center of an intersection ... a so-called silent policeman consisting heavy aof circular upright post, base and ’’ ’’ sign surmounted and a light, that the device was anchored only place held in weight; its own “toppled over and lay in the (street) traveled and constituted dangerous obstruction” street; that after notice this ob struction in the street the defendant permitted remain, it to unguarded in portion the traveled street until auto *6 damage which for causing mobile “ran 'over it” the automobile signal device brought.
the action that the held traffic was was a constitute described, position, not long so it in did remained that maintaining defect in it .placing the street and that weight, by point, though place only was its it anchored or in held city legal the duty” “was an actionable breach the of_ city if liable the street, “owed travelers” on but that was the traveled after fallen into the notice that standard had failed portion of it the street the'street and become an in neglected, a thereafter, within reasonable time to remove Casbon, in obstruction. The evidence in Town of Hobart facts with the facts 81 Ind. 142 N. E. are identical App. 24, almost showed, evidence de case. that that instant case Town, fendant, con TIobart, post had “traffic traffic crete base two streets:” at the that post off, “had been base abutment” leaving broken the concrete intersection; city in the “the no or barricade block;” through driving around the concrete the inter night” plaintiff’s “during section this concrete struck charged case, per block. “in As in the instant barricades, mitting such obstruction remain street without signals lig’hts danger appellate thereon.” The held that court against case was made and that the out verdict Referring and other “well the evidence.” these sustained opinion says: like cited therein in Auslander cases distinguished” “These . are to “liability cases in in keep such cases . was based failure its streets- in safe condition reason for travel a. physical in. condition the same.” defects , distinguishable The Prewitt case cited defendant is on the facts and the therein involved. case plaintiff issues -In that claimed to injured motorcycle.ran sign have been his when sign The general street intersection. was of use in type general city “and in in cities of States” use the United regulation for the facilitation of traffic promotion safety. reading opinion A think, will, readily that case we properly maintaining that it that in placing holds demonstrate sign acting, its appears capacity. the contention made Further in that case corporate capacity that the held to have “acted should-be- no ordinance was authorizing the reason enacted board regulation.” public adopt plan opinion of traffic works said holding the board works public rules contention of a regulate -city statute to first class was authorized traffic on the adopted by instance plan streets and that the such board in instant facts of the applicable ease reasonable.- city’s supporting defendant authority it an ease we do not deem herein. demurrer to the evidence contention on its in- sufficiently appears that under the facts We think that *7 city’s cor- alleged the defendant breach of involves the stant case condi- safe reasonably physical a keep to in porate duty streets sought imposed liability to be thereon and that the tion for travel or exer- city performed upon the manner in which not based is not claimed that It power a or function. cised nonopera- operation or improper reason of collision occurred stood' light post which had signal signal. a When tion of leaving this'concrete block removed concrete base was on this block, be, that the concrete not, claimed street, hardly and is it could regulate traffic. operated to alone, any way served or itself and unguarded street which if a mere obstruction in the It then became would-likely be, especially in lighted, unlighted, not'properly or or at that to on street physical a hazard vehicles nighttime, This a made. is that submissible case wafe Our conclusion point. assignments appellant’s (plaintiff) brings a to consideration us request. given at defendant’s of error instructions recovery predicated Plaintiff’s In liability theories: on either two plaintiff and defendant n either actual or' constructive 2; defendant struction that existing the' street after the traffic knowledge condition base in light removed'leaving;'-the concrete signal post were 'unlighted unguarded, shown the center of the intersection as care to ordinary evidence, time, the exercise of “in warning” or warning lights; light, a or or “at otbpr so;” or, do Instruc but-“negligently to on” concrete slab failed “placed light a tion'3; “prior if collision” defendant that show, tending slab,” had evidence said concrete reasonably apprise light sufficient but “such taking into cir night obstruction, consideration motorists at of such a reasonably anticipated by be which'might arise and cumstances stipulation have noted the reasonably prudent person.” weNs whether “the obstruc evidence conflict in the as to shows there was gave lighted.” the follow “properly The trial court then tion’’was (numbered 8)" for ing instruction defendant: óf St. jury City the' Louis
“The Court instructs traveling streets, safety' on-its' nor is persons an insurer of absolutely passage safé condition for" keep in an such bound to entirely every from traveling- thereon, nor free kind by persons streets, obstruction; every obstrtiction in- or nor does right injury, alone insured though afford the it causes even -duty required City of St. Louis. from the to recover City keep ordinary of St. Louis use is that it shall care If, a reasonably such streets in safe condition for travel thereon. you therefore, believe, facts, from all the conditions find City Louis, circumstances in the defendant, evidence place warning ordinary exercised concrete' cwre Page Avenues, slab at the and Newstead saidi. passage was in condition safe for place evidence, your at the time then verdict mentioned in ours.) must (Italics be Louis.” of St. (refer will noted portion), italicized defendant’s last Instruction 8 tells the if find that the defendant ordinary any warning signal” (of “exercised place kind, care to kind, regard visibility, other without to its location whether or not it was time of the “oh accident) maintained slab at the intersection” and “said intersection” (which wide) was 60 feet a reasonably “was in safe condition passage thereon time” at the their de then verdict be for “must *8 fendant.” convey The instruction to jury is calculated to impression, susceptible and construction, is of the their verdict that must they be for the defendant if that time any find prior accident the placed any of a warning kind the concrete slab, regard sufficiency, visibility without its night, and that passage there was safe way intersection, over which was sixty feet wide. So operates viewed instruction to eliminate the ground theory recovery of 3, plaintiff’s submitted Instruction supra, and is in any conflict that event, instruction. view of separate grounds the two and distinct recovery submitted instructions and instruction, purporting, it as w¿ole does, to cover the ease and directing defendant, a verdict for is calculated to confuse and jury. mislead in struction first generalities deals in telling jury, city “is not an safety' persons” using insurer streets, required that it not to keep absolutely its streets “in safe passage condition for thereon, entirely every nor free from obstruction,” kind of adds, every and “nor does obstruction . though even injury, it causes alone afford a right the insured city.” to recover from the The issues in this case were simple, and an instruction predicating the defensive upon facts relied applicable and the law thereto would it have seems sufficed. The being law instructions not jury would consider itself application general authorized to an make of these abstract and propositions law, though the instruction are speci not fically applied to the facts in evidence, giving jury thus roving respect. Appellant commission in that part denominates this homily.”' instruction an “abstract But even in- part
1008' we “insured,” which of the word' by the use confused struction is injects idea that says, Appellant “it italicized. have party” “the insured party”) and that (“the insured was insured injuries if his recover party) cannot (or an insured some in the street without obstruction “alone” an were caused properly other than failure part negligence on the says, Respondent word being shown. guard the “a mere “injured,” typographical been have “insured” should ’’ have not discoverable, and therefore could readily error, which was instruction consider that However when we prejudicial. been is, insurance, .that the a declaration about commences with in these items prevalence consider too the insurer, not con- liability insurance of accident types varied numerous say jury knowledge thereof, can we common tracts and the readily dis- known have have laymen as matter of course must injured party?” “the party” that “the insured should-read cerned clearly apparent from referred cases where was have been We “plaintiff” been word the context instruction versa, wherein “defendant,” inadvertently or visa used prejudicial. the error could properly held that not are however in here. point Such eases criticisms,
Appellant complaints and makes numerous respects properly, are think of the burden some we inclined given cautionary proof instruction certain instructions criticisms, another trial of which of defendant. At these some So- obviously made, can, be, well will obviated. are and doubtless have, cautionary repetitious, ofttimes called are times, become “too much the nature óf lecture to the duty case.” duty to their the whole (Mo.), observed, We v. Wells 278 S. W. 83.] [Unterlachner *9 “Cautionary 677, 681; Wolfson v. 55 instruc (Mo.), Cohen S. (2d)W. . discretion of the court . however”
tions are within the trial . A be caution. not entitled such “should used with is proof in right.” instructions a matter of burden of as As that; struction, declaring “The preliminary statement charge negligence. plaintiff laid is one of Negligence legal wrong, and, therefore, pre is not is in this case sumed,” etc., attention in Nelson v. is directed our discussion Dyer 991, Evans, (2d) 691, 338 Mo. 93 S. W. 694. Mitchell 1082, 57 (Mo.), (2d) 1083, W. Rouchene v. S. Gamble Const. short, “A
Co., 123, (2d) 58, 63, 89 we said: Mo. S. W. simple instruction, telling jury the burden is on weight preponderance greater credible prove his ease evidence, jury he done has so the for de that unless must find fendant, ought inform the to be is sufficient what easily be A will
required plain to dó. effect declaration elaborated, the jury. more the instruction is understood likely to misunder- complex more more be and the it is becomes ought in addition required, stood. . to be Certainly.all preponder- be a clear definition of statement 'should evidence,” ance etc. of errors in the on the of defendant
On account re- judgment of court must the cause the trial reversed and CC., Hyde Bradley, manded. ít so ordered. concur. ‘ opinion foregoing' C., PER CURIAM: The by Ferguson, ' the‘judges adopted the'opinion of the court. All concur. B. v. Wm. C. (2d) Grace White Scarritt, Appellant. 18. S. W. One,
Division December 1937.