*1 retried, we our conclusion hare to be state ease will As this D-4, Instruction it is error question submitted that, of the in view experiences general of those who evidence as to exclude experiences shown have had or are in creosote fumes worked working touching conditions. plaintiff’s (I), one we conclude instruction As to the D-4, presented. error given connection with no presents pleadings and issues We conclude directing defendant’s demurrer jury and therefore fact properly refused. verdict plaintiff’s counsel remarks of the conclude further We objectionable avoided argument features that should be has daughter retrial of the case. The reference to wife comparison objectionable and condition with jury permitted. not be members should judgment is reversed All cause remanded. concur. Missouri, Metz, Respondent, Jr., Adm., Conrad v. Kansas etc., Appellant. (2d)W. 462. 81 S. February 18, City Appeals. Kansas Court of 1935. *2 Rogers Mosmatn, & respondent. 'Buzará and N. Louis forWolf George City Kingsley, Cosgrove Counselor, John J. and Lambert 8. City O’Malley, appellant. Assistant for Counselors, REYNOLDS, Marjorie instituted C. This cause was one Metz recovery damages al- personal her lifetime leged to have her de- been received reason during pendency Since circuit fendant. the trial in the court and died; court, in this she has appeal has and the cause estate; Metz, Jr., in the revived name Conrad administrator her he has been substituted as administrator, and, style name and proceeds now under the stead. cause Marjorie Metz, Metz, Jr., “Conrad Administrator the Estate of Missouri, Municipal Corporation.” Deceased, v. Kansas *3 Seventy-first east and west Holmes appears Street runs and width, in- eighty are south, Street runs north and each feet in and city; acting tersecting city, public streets defendant of year 1929, ac- through park during of board, about specifications provided with therefor plans cordance and in- park pavement of board, said streets on the constructed in the island” may what be termed a “circular surrounded tersection thereof direct heavy curb. Said island was constructed in the a concrete crossing approaching of streets and line travel both said said of so travel on either from all directions that vehicular intersection required pass around said and from either direction forty entirely roadway surrounded island. Said island forming intersecting width, connecting part and feet in island, so intersection approached as streets coming with a motor or other vehicle could said intersection one into up against entirely to and it and around the island thereon drive ninety surrounding it. The feet in diameter the curb into beyond a distance of five feet the intersection projected concrete curb coming the intersection. The the streets into each of height placed surrounding inches in so as it was seven some as had in the curb of the streets it with the curve to conform turn or near the outer line and made to on deflected a direct they passed around the island. The deflection streets as lines of began curbing point upon approaching each of at of the street ninety-five from the curb around intersecting feet distant streets island. Seventy- of Holmes alleging the character petition, after city, duly accepted streets of the defendant public
first Streets city, travel, alleges that the defendant opened
405- opening, establishing, grading streets, negligently said carelessly had, at all constructed same and times since such carelessly construction, negligently and maintained the island and it, (describing it), curb about referred approximately above at streets; of center the intersection of that such island said and curb dangerous so were constructed maintained to be of drivers vehicles and on and as said said streets to render streets automobiles dangerous especially for travel, night; and unsafe on March 1930, long prior thereto, and for a time said island and curb were streets; and had been a nuisance that the said defendant and, by knew known, the exercise of should ordinary care dangerous character of long said island and curb at said intersection prior night (the March plain- date which the tiff complained her), received the and for sufficient length prior which, of time to such date within exercise of ordinary diligence, care and it could have removed the same there- injury had, nevertheless, from before the of her time thereon but negligently continued maintain same to the of her said injuries; city, 9, 1930, that the about March the time injuries complained by plaintiff, negligently failed and warning posts lighting signals omitted posts park and curb provide or near thereto or to other means drivers vehicles of existence said island and curb intersection of said streets or of condition streets on or of there- account thereof the obstruction said streets by ; vicinity and' that no in the sufficient to maintained ignorant curb, enable one of such island and *4 discoyer approaching streets, it from direction said colliding them, by in time to avoid with reason said streets at whereof dangerous travel, said intersection were made and unsafe for nighttime, especially at and were a nuisance. alleged
It was that, further at or about the hour of two A. m. 9,1930, driving March was on Holmes plaintiff in an automobile north intersection, a point Street from thereon south of at a when said dark, the street when her automobile ran and collided into was curb; by that, reason said south side of said island and being lighted by said point insufficiently streets at said reason being negligently placed curb in the center said in- island and having negligently permitted by tersection of their reason by by negligent failure there reason of the remain defendant signals near place warning lights at said of defendant au- drivers provide island and curb or other means streets, upon their character tomobiles and vehicles pre- stop oi to said island time to she did not discover and curb colliding ran with the same but into the from vent automobile noticing presence and thereof without their south side same at the knowing they there. without collision, of said the car .alleged at the time petition speed; by lawful rate of that the same plaintiff at a driven was permanent, serious, damaged; she sustained and that wrecked and a collision as result of the careless injuries reason of such personal A pleaded. detailed re- negligent actions of the defendant damages Her injuries petition. forth in plaintiff’s set cital sought alleged recovery. $15,000, for which she to be were therein answer, denial, amended, general a a second tendered of cer- contributory and of violation pleas of followed City by Kansas ordinances of and various laws of the State tain operation car. plaintiff in the of her jury, $2500 and the a verdict for
Upon trial had before the court favor; and, judgment a rendered plaintiff’s was returned in plaintiff, city, defendant after in favor of in said sum thereon judgment, ap- for a new trial and arrest unsuccessful motions pealed. A. the hour M. on that, at about of two
The evidence discloses driving automobile, 9, 1930, an in which she March from a south of inter- riding, north and her husband were against the curb when ran the automobile section wrecking damaging intersection, the island around damages herself, severely injuring for which the automobile was evidence tend- injuries recovery a in this suit. There she seeks thereof and that ing plaintiff’s the extent to show rid- overturning of in which she was the car were occasioned striking time of ing being thrown therefrom the and her highways. intersection around the at said evidence, peremptory instruction re- At the close Again quested by close, the defendant was denied court. evidence, requested peremptory the whole directing behalf, which in its the court instruction verdict denied. opinion
Other facts in the will be noted the course of record may require. as and occasion
Opinion. following Upon appeal, appellant presents the four as *5 signments error: of
(1) refusing give The court erred in defendant’s instruction in the nature of a demurrer to the evidence offered at the close of all evidence and also at the close of the evidence. giving in instruction No. (2) respondent’s The court erred One OYer objection appellant. of (3) admitting incompetent prejudicial in and The court erred n testimony by respondent ques- to other at the in accidents tion.
(4) The verdict is excessive. assignment presented Defendant’s first of error is under three heads, first, negligent building maintaining that it question; second, obliged that it was not the entire open island rights of streets within its intersection the cross for travel trafficway island; providing’ third, of either side defendant was for maintenance of island with or without liable lights, in view of record the evidence as to the maintenance lights by it, necessary it was for the to show not lights resulting that at the time the collision in her were absent length injuries, but they were absent for a sufficient prior such collision for have known of the absence defendant replaced and to in such respect thereof them she may together. disposed failed. The three heads resubmission, upon appeal, in her brief on seemingly ground might negligence appear all abandons allegations petition, ground of her other than the that the defend negligently ant maintained the island surrounded concrete Seventy-first upon Streets, curb intersection Holmes question, provide light warning signals in that it failed sufficient presence surrounding so thereon said island curb persons using intersection such streets traveling them in approached thereon in motor cars as nighttime presence nighttime and so that their without thereon warnings danger rendered such streets at such public unsafe ous and travel. appear neg-
It would therefore that the relied ligence relating duty by to a breach the maintenance surrounding of Holmes Street and the island Seventy-first Street, intersection of Holmes Street with after the said constructed thrown open Holmes Street had been thereon, providing public use with such island and curb without signals sufficient or other island and curb, to warn travelers thereon such island and whereby it failed to maintain it safe condition for night. travel held, respect
A public streets the establishment use, in the construction thereof for in the exercise of governmental; capacities first, second, two powers act in —
408 land designating by that certain within In ordinance
ministerial.
thereby
street,
public
becomes a
street
a
such land
certain limits is
by
purpose
such
but
city
for
acquisition
same
afterward, provision
If
open
public
for
use.
necessarily an
street
not
street,
for
as a
it is
by
improvement
for
use
made
its
ordinance
thereby,
for
even,
open
an
street
use.
governmental
city acts in a
passing
ordinances,
In
such
discretion in
legislative
it exercises its
capacity,
capacity
declaring
defining
in what
and extent of the
lines
improved
open
thrown
manner and
extent it shall
to what
matters,
it is not
acting
capacity
In so
such
for use.
duty.
[Ely v. St.
neglect
Louis,
an
a
answerable to
individual for
passage of
723,
But, if, after the
the ordinance
181 Mo.
After Holmes Street and thrown for use was constructed public travel, and was for used street, together to maintain with the island and the reasonably thereon, public [Ely travel. in a safe condition for City Louis, supra; Louis, 687, v. v. St. 217 of St. Benton Mo. l. c. 418; seq., Boyd City, Gallagher 700 supra; et 118 S. W. v. Kansas 674; Berry v. 201 Tipton, App. 557, Sedalia, v. 133 Mo. 113 S. W. App. 436, 212 Mo. S. W. 34.] duty maintaining public street in a safe con public
dition for use and service after has been constructed and open public thrown use and the use thereof invited uniformly regarded public accepted as ministerial has devolving neg city capacity, one in its ministerial regard liable; lect or breach which it is and this is true without constructed, instance, first to whether or not said street was legislative plans approved in accordance with its governmental Gallagher capacity. [Ely Louis, Tip supra; v. St. v. ton, supra; Hays App. 431, 3; 159 Mo. 141 S. W. Columbia, Trip v. 727; pensee City, App. City, v. 174 Jefferson Mo. Nelson v. Kansas Boyd Sedalia, supra; 94; City of Berry 170 Mo. 157 S. W. v. seq.] c. supra, v. Kansas l. et Sedalia, App.
Judge aptly l. c. in Barry states Bland right gov “. has a . . it well settled that *7 improvement plan capacity adopt general of street ernmental adopted plan injury danger from inherent the and if the results city danger if equally it that the liable, is not but established the negligent or has arisen from the construction maintenance the city plan, the is liable.”
This, course, and the main- is because both the construction regarded as tenance of the ministerial. plan are to be petition case, upon face, may instant its be construed the sufficiently charge city acting as broad to include a the governmental in a capacity respect with to the construction the question, point island and curb at at least sufficiently the as broad permitted acting respect evidence that it was so with to the adjacent highways construction of the island and curb about said the such been highways, it had offered. by acting, That it was so shown evidence. however, not legislative city not show that the defendant in its or does governmental by capacity directed or authorized ordinance the con- surrounding question, it, struction of the island and or the curb original point deflection of Holmes Street from its lines at such and widening original beyond lines such its around by said island at the where constructed or that ordinance it provided therefor, plan with which the same the materials were constructed, shape, to be the dimensions island or or of said its n width surrounding or way character of the traveled it. hand,
Upon appears other to have plan in evidence board, park body made the chief draftsman a ministerial for the roadways and city; the defendant and such island thereabout jurisdiction seem have been constructed under the direction park supervision board and draftsman and other officers. The park duties of draftsman for the board were direct- ly jurisdiction board, park park under the board employed he his department of which he had offices. draftsman, plan prepared by If evidence, according such improvements made, which the island thereabout legislative governmental authority was ever submitted to approved approved was ever such au- thority any manner, appear nor it appear; does not does so any governmental legislative direction was made ever such au- board, for thority such improvement. park It is clear that the legislative body, a ministerial does cannot exercise alone, powers city. governmental Such are to exercised be legislative city, mayor by the authorities executive powers in such authorities and and the council. Such are inherent discretionary in a manner cannot are be them exercised body. delegated [Boyd supra.] Kansas to a ministerial be follows, therefore, respect no arises with herein liability growing the construc out of to freedom roadways surrounding it maintenance of the and the tion and there where the manner of construction constructed the maintenance thereof workmanship required therefor or of or the might constructed, predicated plan, as have otherwise legislative and have acted in its existed had the been shown to making respect plan and the governmental to such capacities not show for the reason that the evidence does improvements, of such held, upon It must therefore capacities. acted matters, respect city, with to all such record, that the defendant *8 including street, the acted in its ministerial maintenance of the capacity. city Boyd
In v. held that a is liable City, Kansas supra, making im negligence powers of ministerial in for in the exercise its them, provements negligent in for failure to maintain its streets and in in a made, manner render the streets after are such toas travel, citing reasonably public support in of such safe condition for (Mo. App.), holding Ely Louis, Birkhimer v. Sedalia supra; v. St. Louis, supra. Gallagher 200 S. St. 298; Tipton, supra; W. v. Benton v. bridge a con held in of a street It was there the erection the according by ministerial officers of plans prepared to structed a them ordinance in of discretion conferred city the exercise bridge dangerous of it part in such manner that the or some city its lights thereon, the in night failéd to travelers at without reasonably for duty keep highway safe travel bounden the bridge maintaining for guilty opening and in thereon, citing lights support in of such travel without such 431; supra. Sedalia, Sedalia, 77 Birkhimer Loewer v. Mo. v. statement was said therein: contractor, itself, through city if or a “It is familiar law that the according by or- streets, plan a enacted improving in even street, dinance, traveler the makes an excavation which a on into night, owing the excavation, to the failure of ignorant falls at excavation, light or the city property or contractor the the exercising care when he if was himself due city is liable the traveler injured. W. same 181 S. Kansas 1005.] [Robison is erected above to obtain where structure principle would seem adopted by minis- according plans the the surface the street city. event, properly In the must city terial officers of either discharge light dangerons night, place at in its absolute order duty keep reasonably to exercise reasonable care to its streets safe travel. condition for city regard duty
“The absolute well stated Lamm, J., opinion Case, supra, page 700, Benton his !A follows: owns and controls its streets as trustee public. charged It, therefore, law with primary stands keeping nuisances, and bounden them free from defects and (in third if it in parties obstructions caused itself or the latter stance) actual had or constructive notice thereof abate nuisance, remove defect. repair obstruction It cannot with, to, duty, shirk it over others. So shift halve Louis, is clear law v. St. must Missouri.” 71.] [Welsh disposing an in City), In the same case Kansas (Boyd v. given therein for trial of the cause in the struction court, predicated negligent circuit maintenance girder signals, bridge wit'll a thereon without page thereof, 'negligent said, court “The maintenance’ 'as jury pre aforesaid’ could in case found the facts be found required, viously without to-wit: That the viaduct was maintained lights; girder dangerous absence of rendered said night knowledge of such had knowledge or, by care, condition exercise of due could injury. If the prior thereof and the same remedied city negligently jury fact, these then failed found matters of in a its streets matter of law to reasonable to maintain exercise care accident to safe condition travel and thereby, care her the exercise due was caused while she *9 find, plaintiff was required jury to self, which the instruction also entitled to recover.” (Mo.), 36 S. City Springfield v. Cox
The case of State ex rel. judgment Springfield of the (2d) 102, in and opinion W. which the Cunningham, respondent, v. Appeals Mary in E. the ease of Court Electric City Springfield Company, and Springfield and Gas and certiorari, in involved erection appellants, was under review fenced, light driveway without public of a in a pole maintenance persons using said any way apprise marked so guarded, or in as to light pole seems to have been driveway presence therein, its Springfield Gas and placed there the defendant maintained consent of Company permission Electric with the things, among other ease, city. appellants, In that the defendants in Springfield Appeals opinion of the Court contended that damages therein for holding liable to the them 412 colliding with street in
sustained her while a traveler Supreme Court pole opinions said was in conflict with certain city de following (1) nor the particulars: cited in the Neither any ob company was liable for the condition of fendant electric which, driveway while within the portion struction any way improved for ve line, dedicated to and outside Chillicothe, 311 City v. city, citing Griffin hicular traffic 84; Joseph, St. Mo. 279 S. W. Clinkenbeard v. Mo. question was a lawful (2d) (2) pole 54-60. iron S. W. Since the lighting city and the it was conceded that the structure since it was right place pole placed company had the where street, a public a nuisance on it therefore did not constitute since guard, pole fence, mark said were under no driveway way person using of its apprise so as 657, 87 Ry. Co., 188 Mo. S. W. therein, citing v. Pacific Seibert Mo. 258-266; Gay 995; Bldg. Ass’n Co., Telephone Julia v. Bell Mo. Co., 12 App. Union Tel. 485. Mutual Ragland disposing contention, Judge court, for the of the first v. St. said, City Chillicothe, Joseph, “Griffin v. and Clinkenbeard question In first sole supra, comparable are not on the facts. required re- presented whether a for determination was pair guard paved of the street and portion a hole ‘outside of the designated limits curbing, which for and confined the ordinary In second vehicular travel over the street.’ paved injury through driving received his his automobile against light pole an portion the street over the curb and electric But alleged negligently parkway. to have been maintained in the shrubs, parkway obviously not in- was covered with trees and tended for travel automobile. clearly holding ruling contravene our
“The does not right open public travel improve that a has the for persons portion street, injury of a and is not liable platted for using portion opened improved use.” judge said, disposing contention,
In “The of the second the learned eases are of the mark. In the case under cited under head wide plac- review, plaintiff’s theory proceed action did not on the that the ing light pole portion in the street used vehicular travel in nuisance and of itself constituted an unlawful obstruction —a per negligent failing mark or se—but that defendants were to so equip that it visible to on the street at all pole would be Ap- day night kinds of weather. The Court of times of all *10 deciding, city lighting peals, assuming, ‘that the and the without company right light pole placed,’ was place the the where it had to notwithstanding, guilty to plaintiff held that were liable negligence charged negligence respects in the and such was the injuries. new, nor is it principle cause is not proximate of his The Boyd with See v. Kansas in conflict decisions this court. right place pole 237 W. The S. cases cited. to the portion travel,
in used for vehicular if defendants the of the street the of its right, did relieve ordi- had such not exercise nary day care safe for keep the street travel many pole night. equipped Had the some of devices ivith bring highway used modern maintenance to the attention of night dangerous conditions, might it the existence of materially safety street; was, impaired the it was as it a obstruction.” opinion pole
It was further said in course of the was in public portion a street and in the of it used for vehicular travel. private driveway. It was not a case, charged petition
The relied light therein, negligently pole erected and main- driveway being fenced, in a tained defendants without any using guarded, apprise person or marked in so as way said driveway presence Appeals, upon therein. Court of re- held, record, view the evidence in the “It clear us that and maintenance of this defendants pole location at the where provisions with from pole it was located no to make the visible rainy night a dark west was sufficient make the their jury.” negligence one for the case,
In instant in addition set state evidence out herein, tending that, ment there is evidence in the record to show early morning 9, 1930, about two o’clock in March mentioned driving from petition, north, the south to the Seventy-first Street approaching the intersection of Holmes surrounding where the island the concrete which Street Street, placed ap had was located. thereon Holmes intersection, rising- grade, said proached broke at ,to practically hut continued island. intervals intersection, approaching that, shows further plaintiff’s car thrown above the island and the curb surround knowledge ing it; that the of said no is land curb in pavement the intersection or the condi time, ignorant thereof; wholly tions but there at such there lights upon was no moon and were no there or curb vicinity give thereof a warning presence upon their said in tersection and warning signs neither were signals there night other character which a might traveler on said street after be warned of existing points; the conditions at such *11 entirely extended to such island and surrounded it.
street nortli driving Street, that, Holmes she was up testified ninety-five straight looking that, her the passed ahead of she n intersection, having island and feet of the failed to observe the south beginning intersection, curb she failed also to observe at the the widening-out place setting-out the and the of the the street at directly along original proceeded north course curb thereon but street; did the island presence of the that she not detect immediately although them, upon curb until she almost she was looking direction; out be the island in their that that turned fifty her, when was some feet dis pavement appeared she street; approached tant, that, a low as she the in to be rising grade in tersection, by her was interfered with said .view highway prevented seeing curb and she was said island and until grade, very passed she she was a short over the crown when it, therefrom; that, distance when had discovered it was too late she striking stop car it so as avoid the curb her her turn failed; island; that said that she endeavored so do but about traveling twenty twenty-five per she at the rate of from miles driving cars; hour; that she had had motor that experience some lights she of the was unable to see said island reason absence lights warnings or other and could not see it from her car throwing lights rising grade, up, reason of the as she came curb; car above the collided with the curb and island thereby. injured personally she was There overturned and tending that, opened show at the thereupon by intersection, created across said island heavy concrete about the construction around seven lights height; the defendant caused red or re inches placed thereon, upon north, to be each at the center flectors one These made of east, south, and the reflectors red west. which, gave lights times, glass and, accordingly, forth red could driving slowly a distance several hundred seen travelers travelers, away. However, appears in approaching said feet highway, frequent intersection on occasions ran over the curb on reflectors, knocking against, said into said island and them frequently happen occurrences this character out or down. So did rely adopted ceased to said reflectors but that defendant points hanging lanterns said island at the where the re system were, large been. Just how the lanterns record flectors had does system adopting after The evidence shows not disclose. thereon, hanging same trouble continued lanterns highways running said into reflectors—that least, the knocking down. At evidence shows down; was the attributed frequently and such they were ca.use island, keep it wás to charge whose those therefor that, at of her the time lighted. The evidence of same no island, there were curb about said with the collision upon or about the to her its signals about to indicate part There was evidence undisputed. intersection *12 assigned its duty of certain of tending to show that was the city day ascertain the condition employees to visit said island each needed, and to see that said lights them -when thereon, replace the day night, lighted all. was at times both kept properly island At employees so. tending show did and further evidence that long shown the record how plaintiff’s-injuries, it is not the time of down or how lights been out or knocked upon said island had the unlighted An lantern long complete darkness had there. prevailed by plaintiff’s husband lying scene of collision was found near the the night early later that or the place, when he to such either returned frequent were the incursions morning. appears so next lights the thereon frequently into island were' the and so street city park foreman down, suggested knocked out was, supervision island at a superintendent under whose it, surrounding meeting board, it, park of the that with the curb danger presence be torn out on account of hazard should presented. at such island and maintenance The street defendant, the control thereon and the curb about it were under lights by it and that it at placed and the fact that thereon were matter for consideration tempted keep proper thereon is a them lights recognized determining thereby that whether the defendant recognize If necessary thereon. it did maintained necessary, maintain them. it was its they were [Bachman 764; Ry. 48-71, 310 274 W. Quincy, Co., O. & K. Mo. S. C. City (Mo. (2d) 540; App.), 38 S. W. Ebert v. Munden v. Kansas (Mo. (2d) App.), 859 l. c. Kasper A. J. Co. 71 S. W. 860.] right rely upon in a rea The knowledge to the sonably condition for the absence of safe travel City inquiry. [Gray v. contrary putting or of facts (Mo.), (2d) only plaintiff, 29 S. did Hannibal W. Not 710-713.] testify inter testimony, and curb in her the island night by approaching motorists section could be detected testimony striking them; was, effect, but such to avoid during intersection approached witnesses who had lights placed by nighttime. The further shows that fastened, easily knocked city securely but were down were not jurisdiction city the inter park The foreman within whose over. lights plaintiff’s section stated that the the time language, “They pretty were “down near all the time.” In his half — course, they Of they up. daytime was down more than nighttime up they all down near pretty the time hut at all time. with all of of the Had trouble them the time.”
Knowledge park foreman as to the condition of knowledge and the intersection was of the defendant city; park and the facts to which the foreman testified reference charge were such as to the defendant with notice .to might ques at the that the reflectors that the have had securely might placed tion were not or fastened be knocked out were not down time and therefore suf required purpose keeping ficient for inter said island and lighted section at all as a to travelers of the times highways. testimony park of such island foreman in his prior spoke of conditions had existed for two months more injuries. knowledge Not did this foreman have conditions, gave but he actual notice of such conditions to park knowledge chairman. park board and its foreman was in city. itself to the v. Kansas notice [Donahoe *13 Likewise, knowledge acquired S. park W. board from 571.] park meeting knowledge its official foreman at constituted to the city. City, 308 513, defendant v. Kansas 273 Mo. S. W. [Davoren 401.] urged by plaintiff
It is was not in the exercise highest degree required operator of an of care of a car motor highway guilty contributory negligence and that she was looking only straight was approaching as she ahead the intersec looking tion in and in not also to the sides. There are cases holding that, highest degree care, in the exercise -of the a motorist required keep laterally not to a watchout ahead but to the McCarty, 327; sides. 295 243 v. Mo. S. W. Aron [Hornbuckle Ricker, App. However, son S. W. 641.] with particular reference facts under review at the time. The facts in those cases tended to show that the com might plained laterally been if a have avoided watchout been had kept application called for of such rule. The facts application injury case do not of such rule. justify The to the dangerous side, did not come from conditions but directly True, came conditions in front of her. if ninety-five she looked to side feet south of the island and might being curb, that the she detected street widened at roadway paved right and that a for travel led to the there from; looking if but, laterally she had been so darkness all any light light except around and without from her car on the her, probably street in front of she would not have detected such things. Being unacquainted with the condition and without any knowledge pavement island in the or of conditions in front her, of or them, about had she detected probably she would not have expected way right known that she was pass to follow said to the paved over the intersection. portion The and traveled of Holmes Street also followed the direct course said street north up to the island, to the in which driving'. direction she was also answers This defendant’s contention to the effect that travelers are bound to take knowledge highway traveling and its course when thereon. They are so knowledge bound where have such or where such knowledge is available but however, totally when without such not, knowledge and the means print to obtain the same. blue together in evidence, testimony with the of the draftsman who made it, tends to show that the defendant maintained travel paved forty circular area at least feet width about the island any intersection of said streets. In darkness, without knowl- edge of previously up- the situation or then obtainable, a traveler right on the street has rely upon the fact that the regular open course in front and is safe con- right dition for travel proceed. Likewise, under has the evidence, plain- there is no merit defendant’s contention that degree tiff failed in required the exercise of that of care of her right keep pos- that she did not near the the road as side of sible next approached curb as she the intersection. does vehicles not show that there car or, so,
street at did drive her such time not right injury appear Her have been oc- thereof. does thereon. casioned the fact that other vehicles or travelers were orderly street, proceeding north in an manner on the She knowledge opened, thereupon the curb had been without right. north from its course turned to deflected *14 argues substantially Defendant contends and it was not required right for had the open to the entire intersection travel but designate as an for portion and devote a thereof for use doing utilitarian, ornamental, purposes or other in so acting providing trafficway island, it was within such in a around right liable, negligence, for for traveler any and was not injuries by running said street for incurred into said island surrounding by running any the curb it or other thereon designated travel; portion off thereof for and defendant cites City Aiken, 245; Joseph, 156 Plunkett v. S. E. Clinkenbeard v. St. 143 supra; Ely Louis, Joseph, Curran v. St. supra; App. v. St. 203; (Mo.), 285 Donnelly v. St. Louis S. W. 1005; S. W. City, Griffin v. Marshall v. Kansas 297 Mo. Chillicothe, supra; support 249 S. W. in thereof. au principles
We are not unmindful of the announced such city within thorities; may it conceded that the defendant is only right parts bringing forward, designating, its and improving damages per highway it is liable of a for travel and that for by for travel portions improved other than using sons thereof by as contended city, as declared such authorities cited right to city has the may conceded that a defendant. It further be than purposes other designate portions certain street for of the purposes, travel, other park for for or ornamental or utilitarian not, however, thereby for travel. take it out of the street reasonably safe con duty maintain such street relieved right, least in a ministerial In such dition for use. exercise with its required so in a manner consistent capacity, it is to do reasonably for use in a condition to maintain such street safe City supra; ex rel. v. State travel. Kansas [Boyd Louis, supra.] v. Cox, City of St. And Springfield supra; v. Benton designates capacity right in a ministerial if exercise of such it ac purposes and toward the for certain portion such street dangerous and maintains purposes of such erects complishment safety dangerous as are thereon or such structures any law, required liable for exercise care it thereon any negligent making failure negligence in structures and for so ain manner to render the maintenance thereof connection with public travel, one in a condition for the street safe negligence. damages reason of occasioned City Sedalia, supra; above; v. cited last Birkhimer [Authorities Ely Berry Sedalia, supra; v. Gallagher Tipton, supra; v. St. Louis, supra.] tending the island to show that structure
There case, surrounding curb, in with its street, view of the fact that especially so in to travelers lights, unlighted sufficient at times .without signals, upon the of its devices to warn travelers or other presence them and that it so located to indicate its presence or ig made known such travelers could not be presence knowledge of such to be too late for use made norant thereof until grade street, approached, as was rising reason high, Besides, a concrete curb a few inches view. cut out its background, as a in the middle of a the dirt the island character, same color and would pavement practically concrete ignorant one of its ordinarily be of detection most difficult there, light sign it, when to without some thereon *15 close even far as the record to traveler’s attention. So about attract or struc- upon no the island discloses, shrubbery there were trees lights or no warn- kind attract attention. There were ture of to upon island itself ing-signs thereto. The upon approaches it pave- of the concrete was a mere barren waste soil in the middle ignorant presence of its would it. No one ment with the curb around op- an there; ignorant presence its suspect no one it in knowing evi- upon was until it. facts portunity it there motor ears that, very beginning, show dence it. was im- constantly into It collided- with and made incursions lights running into, possible keep thereon reason of motorists striking theory only them. This can be accounted considering ground rising and the that, located, lay street, grade in the absence of signals permit them could not be known to such time to motorists stop their and that it to travelers was therefore cars nighttime, located as it was. far
So as the further contention that not in use part designated, paved, provided defend concerned, justified ant for travel is it not the facts forty paved, way, width, record. The traveled feet surrounded the island, curb up at least around it. Such is shown blue print in Street, evidence. Holmes as it came north to island, part forty formed a foot street around the island on nothing'to prohibit it, south. There the use of even up daytime, directly open the curb. was there use; thrown nothing, daytime, and there was even in the to indicate that it was up ignorant not-for use curb. To one situation, there nothing night under the darkness of the to indicate it could entirely not be and was not intended to be used across the intersection until such a one was it was too late stop. Such con tention, record, under facts is not available to defendant. Ragland Judge statement City State ex rel. Spring Cox, field supra, with reference to the facts in that ease there under review and the facts the case of Clinkenbeard v. St. Joseph, supra, to the effect that comparable, applicable here. entirely We an different situation as to facts from any of the eases relied defendant under head.
Defendant contends in view of the evidence in the record with reference placed upon had been the difficulty maintaining and the them, had in required show not light there was no the island at the time, she collided with the curb and island injured, and but to show that said island unlighted and curb had been and without
n warnings length prior the collision of time thereon for a sufficient the, care, to injury defendant, for exercise of ordinary and within and had time thereafter known of such fact reasonable have ordinary care, reasonably cor- might, it exercise of which the tending such record situation. There is evidence the rected necessity lighting recognized that for the is- show the defendant might be about beginning, from the order that the streets it land reasonably travel, for in a condition but it maintained safe system any lighting never, time, at a for such installed sufficient system operation purpose put a sufficient therefor. There lights tending installed were to show that such as were evidence poles height insecurely placed and small iron at small highway they readily could not be seen rising grade of approaching island, reason of the the street. They frequently were into and knocked down motorists. There run they greater part tending were down a to show that they plain- placed the time were first and the time of between covering period glass months. accident, tiff’s of several Red re- flectors, width, tried; ten were later or twelve inches first least, by supplanted, at supplemented their use was the use Testify- frequently which were found or knocked down. out lanterns ing Oarlson, superintendent park plaintiff, H. de- Fred partment park in which island in west district situated, experienced much said that he so trouble with motorists running knocking” lights into the island and out down that he brought park the situation to attention of the chairman of the danger him presented and hazards it and advised board have the island torn out. lighted
It was
of the defendant
to have
such
island
danger
requirements
‘a-manner commensurate with the
charged by
primary
with the
the law
and bounden
situation.
stood
point
at
in a
keeping the street
safe condi-
duty of
day
night.
times,
at all
Under
use and travel
both
tion
maintaining up-
record,
could
so
circumstances
it
do
warning signals
times,
lights
all
substan-
on said
or other
at
tially
securely
power
of sufficient
and character for
placed,
accomplished
to be
and served.
purposes
necessary
intended and
prior
situation for weeks
Here, it had notice of the
times,
lights
necessary
were
t£at
at all
—notice
night;
lights
proper
were insufficient for the
especially at
giving warning
dan-
lighting
streets
lights
by it
gerous
up;
placed
that such
there
even when
situation
day
could
practically every
and out
knocked down
half
over
the time. Yet
kept up;
were down
not be
any apparent
continue without
allowed such condition
effort.
change
better
other than to
from the
it,
stationary
nse
reflectors
loosely swung
against
to lanterns
npon the island or set
the curb
supplement
or to
the use of
lan
such reflectors with the use also of
practice
terns.
visiting
every day,
It continued the
the island
replacing
swinging
lighting
thereon and
lanterns
giving
thereon and
no further attention
until
situation
although
day,
next
knew
placed
lanterns
were liable
Here
to be knocked down or
moment.
out
continuously menacing
condition, of which it had full notice
*17
through
agents
its officers and
at all times. Under such circum
stances,
fur
duty
there rested no
the
to make the
showing
by
The
suf
ther
as contended
defendant.
had
defendant
length
menancing
ficient notice of the
for a sufficient
condition
prior
plaintiff’s injuries
remedied
of
within which to have
legal
had
maintain
it cared to
so.
It was under the
of
do
question,
ing lights
signals
point
or
at all
at
times
warning
street;
or
it should have used
and
dinary
conclusion
duty. That
commensurate with
such
care
justified by
fully
what is said in the
proper,
think,
reached is
we
Judge
Judge
opinions
both
Lamb and
Woodson in Glaser v. Roths
of
217 Mo.
child,
1,
Louis,
120 S. W.
and in Benton
St.
687, l.
S.
c., 700,
It it must be held that the instruction in the follows ruled properly close the whole evidence was demurrer at the of by the trial court. trial court assigns
Defendant as error the action giving have examined all plaintiff. Instruction One for We into complaints by concerning find of them and fhil to made only with well not taken. Such instruction authorized by also. by but pleadings in the issues raised find required fastening defendant, liability upon before jury, de Seventy-first public streets Holmes and streets same, use; establishing city open fendant main carelessly and constructed negligently the defendant complained curb island obstruction and tained the lights signals rea without thereof streets and at the intersection night of such existence at sonably sufficient to warn travelers danger colliding curb on such intersection island and lawfully using danger, persons was such therewith, there lack sufficient night reason of the at streets automobile knew, by exer thereon; signals or other known, dan could and caution cise of reasonable care exer time, streets gerous nighttime condition said be remedied the same diligence, to have ordinary cise of care driving her injuries; while that plaintiff, plaintiff’s time of fore attempting March on Street, Holmes automobile exercising degree intersection highest cross said and while safety, for her care so drove the same as to collide with said island curb; thereby injured; and juries in- and that such negligent direct
were the result of the maintenance of said island and without sufficient signals. ample There up- evidence in the record jury on which authorized make all of such findings, theory defendant’s such facts allegations basis in petition. found sufficient in- open not to the criticism that negli- struction is it submitted the gence maintaining defendant the island and curb thereon making lights. without reference to The reference to the mainte- nance of curb in said throughout instruction was in connection with the conditions pres- created their where located when ence not sufficiently lighted, and nothing there contained jury therein .was might negligence actually being have been misled as to the sub- together, mitted to it. The whole instruction to be read parts isolated mere alone. complains repeated of the often use therein of the
words “concrete obstruction referring and barrier’’ when to the *18 might True, island and curb. other words have been appro- more priately used in such connection. whether the However, island was, curb were obstructions and barriers in instance, each when such used, jury. words were left for determination We fail prejudiced by see where defendant was the use therein such words they in connection and manner in which were used. The defendant’s criticism that the instruction was authorized not lack long because of the of evidence in the how record show unlighted curb had been remained at the time and, consequently, upon charge the accident of evidence which to unlighted actual constructive notice their with con- dition, well taken. The matter of necessity is not for such evi- fully dence in disposed this case is of under another discussed contrary opinion, re- head to defendant’s contention with spect thereto. assigned
Error is defendant as the admission respect trial of with other accidents at evidence question. tending competent think We such evidence to show 92, 269 condition. v. St. Mo. Louis, [Hebenheimer ; & Co., 189 W. v. St. S. F. R. S. Charlton Louis Mo. 1180 529; l. 98 W. Golden We Clinton, App. c. S. 100.] regard prior not of witness Carlson as accidents do evidence hearsay. per objectionable acquired He such information superintendent park formance official duties as foreman or of his city, parks district the island in the western district of-the his thereby came under located; such accidents jurisdiction. His duty was in the parks that of the maintenance of matter main- points. the streets or district, taining on said parks, necessary, part was a where his duty; knowledge frequently through that accidents had occurred running motorists their against ears into said island or the curb knocking him thereon down came in the prosecu- tion of his duties. defendant contends that it cannot he as- sumed such that incursions into the island were not result part can carelessness of the motorists. True. Neither they be mo- assumed were the result of the carelessness of such torists. There was no evidence as to the circumstances under which previous happened. Where, accidents were of however, frequency, readily not, evidence, be it could in the absence of that all- driv- assumed of them resulted from the carelessness hardly justified ers. would ordinary Such as a human result experience.
Defendant are contends the verdict was excessive. We ample There unable to concur such contention. was an basis evi returned. There a verdict the amount painful. were not severe but dence in practically of her She was rendered unconscious from date jury morning 9-,1930, March until thir on the the twelfth or the thought with in her ribs. It was pain teenth. She suffered head and right cut deep received a were broken. She two ribs afterward, and leg, months which she troubled some with in the cuts and bruises. She remained other smaller numerous hospital weeks; and, after returned to her home about two of months. a number to her bed for Hotel, Chatham she confined by reason of operation on her June, leg, In she had submit to an found thereon; clots and dead tissue were and blood the wound She operation pain. much Such caused removed. therein and men spells between her nervous subject headaches and to severe her in previous to experienced which she had periods strual conditions from deranged menstrual jury. She suffered *19 con of a trial —the result injury time of the to the time of injuries, in the accident. received, with upon the brain cussion phy her. Her affected materially otherwise also concussion This his were, opinion, respect her.injuries in this sician testified permanent. exam- assignments made. An error disposed all have- We The trial. upon error fails to reveal record ination judgment right party. for the judgment verdict C., Campbell, concurs. affirmed. is be and trial court should adopt- C., foregoing opinion Reynolds, PE1R CURIAM: The All con- affirmed. judgment court. opinion ed as cur.