Opinion
No. 21421.
December 4, 1950.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, EMORY H. WRIGHT, J.
David M. Proctor, John J. Cosgrove and Henry Arthur, all of Kansas City, for appellant.
Ben W. Swofford, Laurence R. Smith and Swofford, Schroeder Shankland, all of Kansas City, for respondent.
Plaintiff, Fullerton, sued defendant, the City of Kansas City, Missouri, for personal injuries and for damages suffered when violently thrown from his motor bicycle on a public street. The cause of the accident was alleged to have been a large hole in the street.
Verdict was for plaintiff in the amount of $3500, and, from a judgment thereon, defendant appeals.
Plaintiff was, at the time of the accident, 64 years of age and in reasonably good health. He was employed as a railroad crossing watchman. His place of employment was at 1st and Gillis Streets, in Kansas City. He habitually rode a motor bicycle to and from work, and was going to work when injured. The weather was good and the streets were dry. The accident occurred at about 9:20 p. m. March 3, 1948.
Plaintiff's testimony was to the effect that, in traveling from his home to his place of employment, he usually proceeded down Locust Street to 9th thence east to Charlotte, thence north to 5th, thence east to Gillis, thence north to 1st; that, on the evening of the accident, he proceeded along a different route because of a street blockage on 9th; that he proceeded north on Locust to a point some 75 feet north of Independence, where the accident occurred; that he was traveling at a speed of about 15 miles per hour; that his vehicle was equipped with a headlight that focused some 60 feet ahead; that after crossing Independence while traveling on the east side of Locust, (which is about 70 feet wide) there was a large transport truck parked alongside the east curb; that, as he approached same, he turned out, to his left, in order to pass, and noticed several cars coming from the north; that the headlights of one of said cars blinded him; that the traffic on Locust is extremely heavy, but that he didn't know whether or not any car was immediately behind him; that he started to reduce speed in order to stop, when the front wheel of his bicycle rolled into a hole and he was thrown violently over the handle bars, receiving the injuries complained of. He stated that he might have hit the hole just as he applied the brake; that he did not see it, because of the blinding headlights; that it was located west of the front end of the parked truck, about 10 or 12 feet west of the east curb of Locust; that after being thrown he examined it and estimated it to be about 18 inches by 24 inches, and 5 or 6 inches in depth. He also stated that the telephone company had been laying cable on the west side of Locust, at this point, and heavy machinery blocked the west lane of traffic; that he had not been along the street for a week or two previous to the accident and did not know, until then, that such work was being done at that point.
Mr. Licaudi, who owns a grocery store located a hundred or so feet north of the place where the accident occurred, aided plaintiff in recovering his bicycle shortly after the accident occurred. He testified to the effect that the hole was, approximately, from 3 to 6 inches deep, 18 inches wide, and 24 inches long; that he had hit it twice with his car, but had tried to avoid it, prior to the accident; that the hole had been there for a period of about two weeks.
No question was raised as to the extent of plaintiff's injuries.
Defendant contends that plaintiff was guilty of contributory negligence, as a matter of law. Defendant says that when plaintiff saw an approaching car, whose headlights blinded him so that he could not see the roadway, it was his duty to stop, in the exercise of ordinary care for his own safety. His chief authority on this proposition is Solomon v. Duncan, 194 Mo.App. 517, 185 S.W. 1141.
That decision merely gives application to the facts therein of a well-known rule of law, to-wit: one cannot recover for injuries received because of the fault of another if he fails to use due care for his own safety. In that case, it was a foggy night and the streets were wet and slippery. Plaintiff drove his automobile at such a rate of speed as to be unable to stop it, or to swerve it, within the distance that his headlights would have disclosed an obstruction in the street. However, in the case at bar, such was not the cause of plaintiff's striking the obstruction. He was prevented from seeing the obstruction because of being blinded by headlights of an approaching car after he turned out to pass a parked truck. It was not an atmospheric condition which had prevailed for a long period of time, and which prevented him from seeing the obstruction before encountering it.
Defendant says he should have stopped immediately when the headlights blinded him. It was for the jury to determine whether or not he acted as an ordinarily prudent person would have done. This was a heavily traveled street, and it was greatly narrowed at this point because of the parked truck and machinery. If he had stopped instantly, in the middle of the street, when he was blinded, he might have been struck from the rear by an automobile, or from the front, before he could have reached the curbing. Furthermore, it does not appear that he failed to slow down, with the intention of stopping, within such time as was reasonably possible for him to do so with safety to himself, after he was blinded. Snyder v. Murray, 223 Mo.App. 671, 17 S.W.2d 639, 642; Bedsaul v. Feeback, 341 Mo. 50, 106 S.W.2d 431, 435. We cannot hold, under the evidence here, as a matter of law, that the blinding lights had affected his vision for such a length of time before the accident occurred that plaintiff was guilty of contributory negligence in not having stopped before his bicycle reached the hole.
It is next contended that Instruction No. 1 is fatally erroneous. Under said instruction the jury is informed that it is defendant's duty to exercise ordinary care to keep its streets in a reasonably safe condition, and further provides:
"* * * and if you further find and believe from the evidence that on March 3, 1948, there was a hole or depression of 5 inches or more in depth, in the public street * * * as described in evidence, and if you further find that such hole or depression, if any, made said street unsafe or dangerous for operators of motor bicycles, traveling over and upon the street at such a point * * *, and if you further find that * * * said defendant City failed to * * * place a barricade or other warning thereon * * *, and if you further find * * * that the front wheel of his motor bicycle was caused to and did run into the aforementioned hole or depression, if so, as a direct and proximate result of the unsafe and dangerous condition then and there existing (if you find said condition was unsafe and dangerous), and as a direct and proximate result of the negligence of the defendant City (if you find it was negligent) and that plaintiff was thereby injured, then your verdict should be in favor of the plaintiff * * *." (Emphasis ours).
Instruction No. B, given for defendant, provides: "The Court instructs the jury that Kansas City is not an insurer of its streets or sidewalks or of the safety of persons walking over and along the same, but is only required to exercise ordinary care to keep the streets or sidewalks in a reasonably safe condition for those using them * * *."
Defendant concedes that if the submission had been limited to "dangerous," the instruction would not be objectionable, citing Biermann v. City of St. Louis, 120 Mo. 457, 465, 25 S.W. 369. Such was the holding, in effect, in Cooper v. City of Caruthersville, Mo.App., 264 S.W. 46, 49. Ordinarily, however, if either of two theories, submitted in the disjunctive, fails to present a submissible case, the instruction is bad. Lackey v. United Rys. Co., 288 Mo. 120, 147, 231 S.W. 956; Alexander v. Hoenshell, Mo.App., 66 S.W.2d 164, 169. Defendant contends that it was error to submit "unsafe or dangerous" because it imposes on it a greater burden than the law requires. It has been held error to authorize a verdict on a finding that a sidewalk was not in a "safe" condition. Cooper v. City of Caruthersville, supra; Fath v. City of Cape Girardeau, Mo.App., 115 S.W.2d 75, 76. It was held, in Robertson v. Wabash R. Co., supra, 152 Mo. 382, 392, 53 S.W. 1082, 1084, that it was error to authorize a verdict on a finding that a depot platform was "in an unsafe condition, and out of repair". This because, as stated by the court, the Railroad Company was only required to maintain its platform in a "reasonably safe condition", and was not liable for injuries sustained because of slight defects.
In State ex rel. City of Jefferson v. Shain, 344 Mo. 57, 124 S.W.2d 1194, 1195, the instruction submitted "defective condition," and it was held to be reversibly erroneous. In so holding the court cited Robertson v. Wabash R. Co., supra. It appears, therefore, that the Supreme Court has twice declared the word "unsafe," when used in an instruction, in this type of case, to authorize a verdict on a finding of a "slightly defective" condition; and that such practice is condemned. We are also constrained to so rule.
However, plaintiff says that the error in the instruction was cured by certain other language therein (unsafe and dangerous) appearing in the latter part of said instruction. We cannot so hold. At most, the two phrases could only create confusion and misunderstanding on the jury's part, whereas it is the function of instructions to clarify the issues and make easier the task of the jury. We cannot know that the jury understood the law that they were to follow in arriving at their verdict.
It is next urged that the error in Instruction 1 was rendered harmless because of the giving of defendant's Instruction "B", supra. Instruction 1 is plaintiff's main instruction, covers the entire case, and directs a verdict; and it contains a misdirection on a vital issue. It was not cured by the giving of defendant's Instruction "B". The two instructions are in conflict. State ex rel. City of Jefferson v. Shain, supra, 344 Mo. 57, 124 S.W.2d 1194, 1197.
Instruction 1 is further criticised for failure to require a finding therein to the effect that defendant had sufficient time, in the exercise of ordinary care, after acquiring knowledge of the condition of the street, to have made repairs, or to have given warning of its condition. We will not discuss the point, in view of the fact that the judgment must be reversed and the cause remanded for reasons heretofore given. However, we think the point well made. Allen v. Kansas City, Mo.App., 64 S.W.2d 765, 766.
The judgment should be reversed and the cause remanded.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is reversed and the cause remanded.
All concur.