Opinion
No. 21368.
October 2, 1950.
APPEAL FROM THE CIRCUIT COURT, CLAY COUNTY, JAMES S. ROONEY, J.
John J. Alder, Kansas City, Alan F. Wherritt, Robert F. Sevier, Liberty, for appellant.
Robert E. Rosenwald, Kansas City, Francis G. Hale, Robert E. Coleberd, Liberty, Lawson, Hale Coleberd, Liberty, of counsel, for respondent.
This is an action to recover damages for personal injuries to the plaintiff, claimed to have been sustained due to the negligence of the defendant while the plaintiff was riding in an automobile driven by her husband. Plaintiff recovered a verdict and judgment for $4000. Its motion for new trial being overruled, the defendant appealed.
The material allegations of plaintiff's petition, in substance, are that on July 31, 1948, and for some time prior thereto, defendant was engaged in constructing the earth shoulders adjacent to the concrete paved portion of Highway No. 63, over a distance of about two miles north of Pomona in Howell County, Missouri; that defendant had placed entirely across the paved portion of said highway and at right angles therewith, from shoulder to shoulder, a quantity of earth one foot or more in depth, and about two yards in width, which formed an obstruction over the traveled portion of the highway; that on that day plaintiff was riding in an automobile in a southerly direction on the paved portion of the highway, and when it reached a point about a mile and a half north of Pomona, the automobile came in violent contact with the earth obstruction, and as a direct result thereof, plaintiff was caused to be thrown violently about the interior of the automobile, thereby sustaining the injuries alleged. Plaintiff further averred that the injuries were directly and proximately caused by defendant's negligence in that (1) said obstruction was such as to be dangerous to travelers on the highway, was difficult for operators of automobiles to see and to distinguish, which was known, or in the exercise of ordinary care, should have been known to the defendant; that (2) defendant wholly failed to give timely warning or any warning of such obstruction to persons traveling on the highway, when it knew, or by the exercise of ordinary care could and would have known, that automobiles might violently contact said obstruction and thereby injure the occupants; that (3) defendant failed to place any notice, signal or warning sign near or about the obstruction to advise travelers of its presence, (4) or to barricade the traveled portion of said highway to prevent travelers from violently contacting the same, and (5) that the defendant placed and permitted said obstruction to remain across said highway in violation of the law and the statutes of Missouri. Plaintiff alleged that the injuries so received consisted of a miscarriage, much suffering, nervous shock and other injuries.
By its answer defendant admitted its corporate character and that it was engaged, as alleged, in the construction of shoulders adjacent to the traveled portion of said highway for approximately two miles north of Pomona, and had placed a certain amount of earth across the highway about a half mile north of that town. It denied all other allegations of the petition. The answer further pleaded contributory negligence on the part of the plaintiff in failure to exercise ordinary care for her own protection, failure to keep a proper lookout for conditions on the highway, especially the particular condition complained of, failure to warn the driver of the said condition, failure to warn the driver to slacken his speed and to have the car under control. It further pleaded joint enterprise and joint control of the automobile, joint negligence with the driver, and failure to keep a lookout ahead and laterally for conditions of the road, excessive speed, failure to regard the fact that the highway was under construction and the warnings thereof, and that plaintiff assumed the risks and hazards of traveling on said earth crossing. The reply denied all allegations of new matter.
The admissions of the answer were introduced and read in evidence. In addition, the parties stipulated that the defendant "placed a mound of dirt on U.S. Highway No. 63 over which mound the automobile occupied by Mrs. Eidson, the plaintiff, was driven on July 31, 1948; each party reserves a right to describe the mound of dirt in question".
At the close of all the evidence, the defendant requested an instruction for a directed verdict in its favor, which was refused by the court. The defendant's first point on appeal is that the court erred in so doing. This requires a statement of the evidence most favorable to the plaintiff.
According to such evidence, plaintiff and her husband left St. Louis on the day in question, accompanied by their three year old son, in their Plymouth automobile. They were all seated in the front seat, the husband driving the car. The small child at times sat on the plaintiff's lap, and at other times stood in the front of the car looking out of the windows. Plaintiff, at the time, was pregnant in about the third month stage. They were going to visit at the farm home of the parents of the plaintiff's husband, located south of Pomona, Missouri. As they neared their destination, they entered Highway 63, a two-lane highway, which runs north and south through Pomona. About two miles north of that town, the concrete slab of the highway had been newly laid. The day was clear, hot and dusty, and where the shoulders had been dragged, clods of dirt had been deposited on the slab and there were many patches of such dirt upon the concrete of reddish-yellow or light gray color. The concrete itself was of a grayish color. As the car traveled southward and when it had reached a point about one and a half or two miles north of Pomona, plaintiff and her husband saw a sign in the center of the highway on which appeared the word "Caution". Plaintiff's husband thereupon reduced his speed to about 25 miles an hour. About 150 to 200 yards further they noticed and passed some heavy road machinery and three or four men on the side of the road. Thinking the "Caution" sign previously seen was a warning of these machines and men, plaintiff's husband thereupon resumed his speed to about 30 or 35 miles an hour.
Neither plaintiff nor her husband seeing any further signs, machinery, men, construction, or other warning of any kind, plaintiff's husband continued to drive southward on a straight course toward Pomona, plaintiff giving much of her attention to her small child, and after having proceeded about one-eighth of a mile, the husband suddenly recognized, within 15 or 20 feet in front of him, a dirt roadway a foot high, constructed across the entire paved portion of the highway from shoulder to shoulder, "featheredged" from the pavement to the center on each side, in all about ten feet wide, and of the same color as the shoulders adjacent, and of a color similar to that of the dust and blotches of dirt on the pavement. He saw no barricades, flagmen, signs or other warning in the vicinity of the dirt crossing, the only sign he saw being the "Caution" sign above described, seen by the parties a quarter of a mile north. The dirt mound had been placed over and across the concrete slab by defendant to enable it to move heavy road machinery from one side of the highway to the other without damage to the concrete, in the course of grading of the shoulders one-fourth of a mile north. The regulation of the State Highway Department required that the pavement of the highway be so protected from the road machinery. Such crossings were removed from time to time and new ones constructed as convenience required, and were never permitted to remain over night.
Upon recognizing the size and nature of the dirt crossing 15 or 20 feet in front of him, plaintiff's husband removed his foot from the accelerator, gripped the steering wheel and called to his wife to "Grab Dickie", the small son, who was then standing in front of his mother, the plaintiff. She threw her arms around the boy, looked through the windshield and saw the dirt mound about 20 feet in front. The car then "bounced and swerved" furiously over the crossing, violently throwing the plaintiff several times against the top of the car, striking her head, and back down, forcibly, into the seat, while she was still holding her small son.
Plaintiff's husband quickly stopped the car after reaching the south side of the dirt crossing. The child was crying and the plaintiff was very nervous. Her husband examined the car for any damage to it, and also viewed the dirt obstruction. The approaches to it were rough and rutted. He could see no signs or warning nearby, the nearest sign being the "Caution" sign a quarter of a mile north. Warning signs had been supplied by the State Highway Department and the regulations required the contractor to set them at such places as would enable traffic to slow down before reaching the crossing. When plaintiff reached her destination, she was nauseated, upset and nervous, was suffering abdominal pains, and vaginal bleeding had set in. She remained inactive most of the time at the farm home and on her return with her husband and child to St. Louis, on August 4, she consulted her physician. She was still suffering from pain, cramps and bleeding, and was advised by her doctor to remain off her feet. On August 7, she suffered a miscarriage and was taken to the hospital, where she remained four days under the charge of her physician. Returning to her home she remained inactive for about four weeks under the care of her sister-in-law and, later, a woman friend. At the time of the trial, plaintiff complained of low blood pressure and nervousness, and of prolonged periods of menstruation. The family physician testified that the accident on the highway "could easily cause a miscarriage".
The defendant contends that the evidence most favorable to the plaintiff and the inferences to be drawn therefrom were insufficient to make a submissible case of negligence. We believe the plaintiff made a submissible case for the jury. We cannot say, as a matter of law, and neither could the trial court, that after defendant had constructed a roadway of earth a foot high, only ten feet wide, and of the color and formation as described, over and across a dusty, dirt-strewn concrete highway of similar hue and appearance, it was not negligence on the defendant's part to fail to place any warning of the existence and location of such an obstruction nearer than a quarter of a mile. Nor can we declare, as a fact, under the evidence, that such act of negligence, if such it be, was not the proximate cause of the plaintiff's injuries. Nor was there such proof of contributory negligence as to defeat her action as a matter of law. The court did not err in refusing the defendant's motion for a directed verdict.
The defendant's remaining point is that the court erred in giving plaintiff's Instruction marked No. 1 and No. 1A. This was all one instruction, the second page of which was labeled "IA". The instruction, in substance, told the jury that defendant had admitted its incorporation, that Highway 63 was of concrete construction, running north and south through Pomona, Howell County, Missouri, and at all times in public use, and that defendant, on July 31, 1948, and for some time prior thereto, was engaged in constructing and reconstructing earth shoulders adjacent to the traveled portion of said highway over a distance of about two miles north of Pomona. The jury further was told that if it found and believed from the evidence that at a point approximately one and one-half miles north of Pomona, defendant, or its agents, servants, or employees had placed across said paved portion of the highway and at right angles thereto, a mound of earth approximately one foot in height and about three yards in width, and suffered and caused the same to remain on said date, and further so found that plaintiff on said date and place was riding in an automobile driven by her husband southward on said highway, and that said automobile struck and collided with said mound of dirt, and as a direct result thereof, the plaintiff, while in the exercise of due care for her own safety, was caused to be violently thrown in and about the interior of the automobile and against the interior parts thereof, and as a direct result thereof sustained injury and damage; and if the jury further so found that such mound of dirt was of such character as to be dangerous to travelers thereon and difficult for operators of automobiles to see and to distinguish, and that defendant negligently failed to place any notice, signal or warning sign near or about said mound to warn travelers on the highway of the presence of such obstruction, and that such failure, if any, caused or contributed to cause injury to plaintiff, if any, the verdict should be for the plaintiff. The instruction defined "negligently", as used therein to mean a lack of ordinary care, and "ordinary care", to mean "that degree of care which an ordinarily careful and prudent person would have used under the same or similar circumstances".
Defendant first asserts that there was no substantial evidence from which the jury could find that the earth crossing was "dangerous" or "difficult to see and distinguish", or that the defendant failed to "place any notice, signal or warning sign at or near the mound of earth". As appears from the statement of the evidence most favorable to the plaintiff, hereinbefore set forth, there was substantial proof of those issues, sufficient to submit the same to the jury. We overrule this objection of defendant.
Defendant further complains of this instruction that it is misleading, confusing and prejudicial. It is urged that the instruction is in the nature of a lecture or speech for the plaintiff's cause; that the admitted facts are seductively and cleverly presented, amounting to a reading of the pleadings; that it gives undue emphasis to the corporate character of the defendant, the magnitude of the operations "on an open highway"; that it presents an array of undisputed facts to form a parade of favorable impressions or an aspect of special sanction, followed by a hypothesis requiring a verdict for the plaintiff. We do not find the instruction assailable on any such grounds.
It is also claimed that the instruction failed to set out facts whereby the jury could determine if the earth crossing was "dangerous" or "difficult to see and distinguish", thus giving the jury a roving commission, guided only by its own speculation and conjecture. The height, width, location, composition and general formation of the dirt cushion across the highway were undisputed, were stated in the instruction and the jury heard all the evidence pertaining thereto. It was not necessary to point out to the jury in the instruction further evidentiary facts touching the ultimate issue of the character of the crossing as to dangerousness, or as to the difficulty, if any, with which operators of vehicles on the highway could see and distinguish the same.
The further point is made that the words "negligently failed", are used only in connection with the notice, signal or warning and not with the words "dangerous" or "difficult to see and distinguish"; that thus the jury might well consider that it could find negligence in respect to the warning, even though the crossing was legally placed and "was constructed so as to be safe and was readily discernible". It was not essential to plaintiff's case that she prove that it was negligent to place the dirt crossing over the highway, or that it was negligently constructed, so long as the evidence showed it was of a character dangerous to traffic and difficult for operators of vehicles to see and distinguish, as was submitted by the instruction, and that defendant negligently failed to provide for travelers on the highway a proper notice, signal or warning of its presence at or near its location. An obstruction well built and legally placed across a highway is, nevertheless, an obstruction, and if dangerous and difficult for travelers to see, a duty remained to warn them of its presence. 40 C.J.S., Highways, §§ 220, 262, pp. 218, 309; Wilmore v. Holmes, Mo.App., 7 S.W.2d 410; Melican v. Whitlow Const. Co., Mo.Sup., 278 S.W. 361, 365. This issue was properly submitted in the instruction.
The next objection is that the instruction fails to require the jury to find that the defendant knew that the crossing was dangerous or difficult to see or distinguish, or knew that, in the exercise of ordinary care, it should have placed a warning at or near the crossing. Defendant's own evidence disclosed that it was in the business of highway construction; that it used such dirt crossings and for what purposes and in what manner; that it placed the crossing in question; that certain signs are supplied to it for use as warnings of the presence of such crossings. Defendant's witness Agnew, project engineer for the State Highway Department, testified regarding such crossings, that "It is highly proper and necessary it be — a warning sign be put on each side of it, reasonably close to it"; that contractors are required to put up sufficient signs to protect the public when working the roads, and if a dirt pad is placed across the highway, a note is made by the witness if the sign is not properly constructed. Referring to such dirt crossings, he said: "They are dangerous, that's what our signs say". Defendant's fieldman testified that he was required to watch their signs near such earth mounds; that the signs are put there as a precaution, and without them, somebody "might get hurt". The president of the defendant company described at length, the kind of signs required and used on such work, and said they were required to be placed "in a reasonably safe distance ahead of the work to warn traffic". The inescapable inference from defendant's own evidence is that it knew of the hazard to the public such dirt crossings over the highway created; that without warning signs they were difficult for operators of vehicles on the highway to see and distinguish, and knew that in the exercise of ordinary care and obedience to regulations they should place signs at or near such crossings to protect the traveling public. The dangerous defect complained of was not one caused by others, of which defendant likely might not have had knowledge, but arose from defendant's own acts and omissions, with notice of which it must be charged. Brown v. Pitcairn, Mo.App., 116 S.W.2d 175, 178. Under the circumstances defendant is not in a position to require a determination of the jury of its knowledge in such respects.
Finally, it is contended that the instruction is erroneous in that it assumes as facts that the dirt crossing was left, unattended, through the negligence of defendant; that it was an "obstruction" and was "difficult to see and distinguish". The jury was required by the instruction, before it could find for the plaintiff, to find that the crossing was of the height, breadth, formation and location described, and that it was dangerous to travelers on the highway, and difficult to see and distinguish. If the jury so found, then certainly the crossing would be an "obstruction" on the highway, and the use of that term thereafter did not erroneously assume facts as charged. That the crossing was unattended through the negligence of the defendant was an issue on the question of failure to place warning signs at or near the crossing, and was properly submitted to the jury.
We do not find that plaintiff's Instruction 1-1A was defective in any of the respects claimed. Judgment affirmed.
BROADDUS, J., concurs.
CAVE, J., not sitting.
VANDEVENTER, J. (sitting by order of Supreme Court), concurs.