This is a suit for the wrongful death of Robert Treon, who was killed when his automobile ran into a ditch within the city limits of Hamilton, Missouri, on December 7, 1960. In order to understand the nature of the occurrence, we will have to describe the locality in some detail. Missouri Highway 13 had formerly run north and south along Hughes Street in Hamilton from Berry Street (a main east and west street running through the center of town, which was then also U.S. Highway 36) south to the city limits. We are not interested in the highway north of Berry Street. At intersecting streеts along Hughes Street there were stop signs, and the State Highway Department maintained the street. In the summer of 1960 that Department relocated and rebuilt a large part of this highway within the city limits; beginning at a point about six or seven blocks south of Berry Street new No. 13 was built to curve northeasterly so as to intersect Berry Street in the center of town,— about two blocks east of its former southbound junction. Thus, at the junction of the old and new Highways 13, there remained a sort of irregular triаngle lying between the northeasterly curve of the new road, the north and south remains of the old black top road along Hughes Street, and the new gravel turnoff curving to the east from the old r.oad to the new, the curve being to the left as one traveled south. This change had apparently been completed in the early fall of 1960. As indicated, old No. 13 was of black top construction and it was maintained by the state, with stop signs to protect it, until the changes were еffected. At the time of this casualty, and for the purpose of drainage, a ditch 30 feet wide and from 5-8 feet deep had been excavated along the north side of new 13, running generally east and west, and extending across the width of old 13 just where (in its former course) it would otherwise have intersected the new road. This ditch led to a culvert running under the new road. We are not told specifically whether the north and south sides of this ditch were beveled or graded so as to slope, but we may reasonably assume that they were, as otherwise the walls would collapse. Some distance north of this ditch, and just south of where the new gravel turnoff began, a smaller ditch had been excavated across approximately the west half of old 13, it being about eight feet in length; this led to another culvert under the remainder of old 13 and afforded drainage from the west side of the old road. Between these two ditches the old black top remained, for probably 100 feet or more (it appearing that the distance from the large ditch to the new gravel turnoff was 169 feet). From this intervening and remaining black top a driveway led westward into a private residence. Just south of that driveway, and blocking much of what previously was the south bound lane of the old road, there was a long pile or windrow of asphalt, approximately 14 inches to two *706 feet high and two to two and one-Jialf feet wide. Thus, as one proceeded sоuth on Hughes Street, and if he did not take the new turnoff, his course was impeded hy the small ditch, the pile of asphalt, and further on, the large drainage ditch. It seems that words are inadequate to explain clearly this rather complicated physical situation, hut enough thus appears to enable one to understand what follows.
This casualty occurred at about 6:45 p. m. on December 7, 1960. Treon lived in Breckenridge, some twelve miles northeast of Hamilton. He and one Junior Clark had left Breckenridge at 6:20 or 6:25 p. m. in Treon’s 1955 Ford to seе Treon’s stepdaughter play in a basketball game at Lawson. Their route led through Hamilton and south along No. 13. Except for some casual and immaterial testimony from a woman who sought to identify Treon and Clark as men whom she saw in a car with a girl outside the Tasti Freeze in Hamilton at about 6:30 p. m., no one saw Treon after he left home and prior to his death. The attempted identification just mentioned was unimpressive and, even if true, was wholly immaterial. Treon and Clark werе found dead in their car in the southerly part of the large ditch, already described, at about 6:50 p. m. One witness coming southeasterly on new 13 (northeast of the spot) saw a flash of lights and found the car in the ditch; both men had obviously died immediately. There was evidence that the bumper was imbedded in the south wall of the ditch about eighteen inches from the ground level; the back of the car was at the bottom of the ditch. The front of the car was “mashed back” and the car sevеrely damaged. The glass face of the speedometer was broken and a portion of the bottom of a brown bottle was found inside; one or two witnesses described this as part of a beer bottle. The label of a beer bottle and apparently another piece of the glass were found on the floor.
Reverting to the status of this immediate area, — upon construction of new 13, the Highway Department ceased to maintain Hughes Street, and on Seрtember 8, 1960, wrote the Mayor of defendant, stating that the old route along Hughes Street was no longer needed, and that it had “relinquished” to the City the old route between certain designated points. The witnesses indicated that this area included all of Hughes Street north from a point 15-20 feet north of the north side of the large ditch. The City was not shown to have taken any formal action thereafter to abandon that part of Hughes Street lying south of the turnoff; physically it remained oрen except for the obstructions noted, and it was used by vehicular traffic at least for the purpose of entering and leaving the private driveway. There was an ordinary street light on a pole at the east side of Hughes Street approximately at the point where the new turnoff left that street; further south and across the new highway to the east was a filling station with relatively bright lighting. The City of Hamilton had a twenty-five mile an hour speed ordinance. At about the time of the foregoing changes U.S. Highway 36 was also relocated from the center of Hamilton, east and west, to a location running south of Hamilton; that matter, however, is purely incidental here.
It was shown beyond all possible doubt that there were no barricades, warning signs, stop signs, turn signs, traffic lights or other devices facing one as he traveled south on Hughes Street at the time of this occurrence. The only sign was a stop sign considerably to the east as one reached the new highway after driving across the new gravel turnoff. Thus, as one drove south on old 13, he would normally see no signs whatever, and no barricades. We interpose here the suggestion that the City has advanced the idea that the turnoff to the left was perfectly visible, was in itself a sufficient warning, and that it could be seen for at least a block even at night. The City takes the further position that it had had nothing to do with putting the ditches or obstacles there and had no responsibility in the premises, although the Mayor admitted that the City had jurisdiction or control of *707 the area down to a point 15-20 feet north of the large ditch, and that he knew that people used the area of the old road at least for getting in and out of the private driveway.
Treon’s principal occupation was that of a roofer and roofing contractor; it was indicated that he had done some work in Hamilton and was seen there occasionally. It was not shown whether or not he had any knowledge of this particular area or of the road changes, or whether he had traveled the road after the changes were made.
There was a verdict and judgment for the defendant. Plaintiff filed her motion for new trial on three grounds: (1) that the verdict was “against the law and the evidence in this case”; (2) error in giving Defendant’s Instruction No. 5; (3) error in giving Defendant’s Instruction No. 5A. The court granted plaintiff a new trial; in the original order no ground therefor was stated. Upon motion of рlaintiff and by nunc pro tunc order it was thereafter shown that the motion was sustained “on all grounds alleged * *
The appellant City insists that a verdict should have been directed for it because no negligence on its part was shown. In considering that point, we look to the evidence most favorable to the plaintiff. Erbes v. Union Electric Co., Mo.,
Here most of the area in question had been returned to the City, if indeed it had ever been officially taken by the Highway Department in the first instance. Reference is made in the City’s brief to the
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date when the City “officially regained control,” and when “Hughes Street was thrust upon appellant.” A city has a non-delegable duty to maintain its streets in a reasonably safe condition or to warn of dangers and defects. Lowery, supra. This is true even though а contractor may also be liable, or some third person (as a street car or bus company) may have the primary duty to repair. Lowery, supra; Fosmire v. City of Kansas City, Mo.,
In view of the highly deceptive nature of the physical situation in this area, including the recent relocation of the highway, the continuance of the black top paving southward except for the ditched areas, the complete failure to barricade or warn in any manner, we conclude that plaintiff made a submissible case of negligence on the City’s failure to barricade or warn. In arriving at this conclusion, we say with some reluctance that we have had little assistance from any authorities cited in the brief of plaintiff’s counsel.
We shall defer consideration of the contention that deceased was contributorily negligent as a matter of law until after considering the assignments of the motion for new trial. The first assignment of the motion that the verdict was “against the law and the evidence” raises nothing and is meaningless. Robbins v. Robbins, Mо.,
We proceed to the assignments on supposed errors in instructions. The first of these is that the court erred in giving Defendant’s Instruction No. 5 “because there was no evidence of negligence on the part of plaintiff’s deceased husband, and suсh instruction was misleading to the jury and prejudicial to plaintiff.” The only argument made is the supposed lack of evidence. That instruction merely told the jury that “negligence,” as used in other instructions and as applied to the deceased, meant the failure to exercise the highest degree of care, which in turn meant “such care as would have been exercised ordinarily by a very careful and prudent person under the same or similar circumstances.” The chаrge that there was no submissible evidence of plaintiff’s negligence is unfounded; we prefer to treat this specifically in connection with the next assignment. Counsel cite two cases for the wholly obvious proposition that it is error to give an instruction when there is no evidence to support it. The court was in error in sustaining the motion on the second assignment.
The third assignment of the motion was that the court erred in giving Defendant’s Instruction No. SA in that: there was no evidence of dеcedent’s negligence in driving at an excessive speed, in failing to keep his car under control, or in failing to keep a proper lookout; also, in referring to the failure “to observe the turn into new 13” because therein the court assumed that there was such a turn; and because the giving of the instruction permitted speculation and conjecture. That instruction told the jury that the law required the deceased to exercise the highest degree of carе (defining it), and that if decedent failed to do so in one or more of the following particulars: “(1) By driving at a high and excessive rate of speed under the circumstances. (2) By failing to keep his motor vehicle he was driving under control under the conditions and circumstances then and there existing. (3) By failing to keep a proper look-out and to observe the turn into new 13 and the conditions of the land south of said turn. And that such failure on his part, if you so find, directly caused or contributed to cause Robert Treon’s death, then your verdict must be for the defendant.”
The trial court, as indicated by its remarks at the time of the hearing on the motion for a new trial, felt that there was no evidence to support any of the assignments of contributory negligence in this instruction. In that the court was clearly mistaken. While the evidence is all circumstantial, the facts which we have already recited established a submissible issue of contributory negligence on excessive speed and the failure to keep a lookout. We deal with the question of control later. Decedent’s car did travel approximately 169 feet after leaving the point of the “turn off” and before entering the large ditch; the force of the impact caused very serious damage to the car; both men were apparently killed immediately. These facts, alone, were sufficient to establish a submissible issue on excessive speed, regardless of the city ordinance. The evidence of lighting and of the visibility of the new turnoff in the road was sufficient to establish a submissible issue on the failure to keep a proper lookout. On these issues, however, we merely mean that there was substantial evidence, direct or circumstantial, from which the jury could have found that decedent was negligent in either or both of these respects, and that such negligence directly contributed to his death.
The submission of the issue of a failure to keep the car
“under
control” is a different matter. In the case of Miles v. Gaddy et al., Banc, Mo.,
“[2] Even though an allegation of general negligence in the pleadings is unchallenged, an instruction must submit the specific acts of negligence shown by the evidence unless the case is one where the doctrine of res ipsa loquitur applies. Annin v. Jackson,
“[3] * * * As shown by the numerous cases cited, the submission in these circumstances of failure to control the motor vehicle as a hypothesis of negligence is not a correct statemеnt of either statutory or case law and its inclusion renders the instruction prejudicially erroneous.”
The present case was tried before the Miles opinion was handed down; but the decisions in the prior cases there discussed clearly demonstrated the error in giving such an instruction. And, if there is any substantial doubt concerning the propriety of an instruction, we are more inclined to sustain the action of a trial court in refusing the instruction or in granting a new trial because of it, thаn we are to reverse a case independently because the instruction was given. In view of the long history of criticism and condemnation of the submission of a failure to control, we hold that for this reason, and this reason alone, the court here properly granted a new trial, unless decedent was guilty of contributory negligence as a matter of law. We consider that question next.
On that contention defendant cites: Sirounian v. Terminal R. Ass’n of St. Louis,
Counsel argue here, with some force, that decedent’s action in traveling 169 feet to the ditch and imbedding the bumper in the soil 18 inches from the ground level, leaves no inference except that of excessive speed; also, that his failure to see the turnoff, visible from a block away even аt night, similarly left no inference except that of a failure to keep a reasonable lookout. These facts, as already indicated, established a substantial fact issue of contributory negligence. We hold that they did not establish it here as a matter of law. In our holding that there was substantial evidence of the City’s negligence there inhered the idea of a concealed danger in the present situation; that holding, in itself, essentially rules the present contention. The conditions here were not similar to those of an ordinary and permanent bridge approach, as in Sirounian, supra. The decedent did not live in Hamil
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ton; it was not shown that he knew of the recent road changes; the evidence as to the frequency and extent of his visits to Hamilton were vague. He apparently avoided the first and smaller ditch which extended across the west or south bound lane of Hughes Street (old 13) and the pile of asphalt just beyond it. If, however, he hit any part of either of these, this fact may have had a substantial and disastrous effect upon his course. Aside from that, however, it is most difficult to say,
as a matter of law,
just what an automobile (or its driver) will do, at any speed, when it has entered an
obstacle course
such as this was. So far as the position of the bumper is concerned, we may reasonably assume that the south bank (or both banks) of the large ditch were sloped or graded; thus, it may be that even a moderate impulse plus the continued motor power of the car might have caused it to plow up the bank as described. The grading of the ditch was never discussed in the City’s evidence. Counsel have presented, in argument, a rather complicated set of for-mulae of physics involving the rate of gravitational fall to show that plaintiff was traveling at least 48 miles an hour. We are not at all impressed with their applicability here. We hold that not all reasonable minds would conclude here that the decеdent was negligent in the circumstances of this highly unusual and recently created situation. The facts here are somewhat analogous to those in Eidson v. Dean Construction Co., Mo. App.,
For the error in Instruction No. 5, as already discussed, we hold that there was no error in granting a new trial. The order granting a new trial is therefore affirmed and the cause remanded for further proceedings.