Watson v. Kansas City

499 S.W.2d 515, 1973 Mo. LEXIS 733

• Court: Supreme Court of Missouri
• Decided: September 10, 1973
• Docket: 56432
• Status: Published

Opinions

HOLMAN, Judge.

Plaintiff, Doris E. Watson, was seriously injured when the car she was driving “overshot” a T intersection and continued down a rock-strewn hillside 55 feet before coming to a stop. She filed this suit seeking damages from the City of Kansas City, based upon the contention that her injuries resulted from the failure of the City to warn of the dangerous condition existing at that place. Her husband joined in the action and sought a recovery for loss of her services and consortium. A trial resulted in a verdict for Doris in the amount of $75,000 and for William in the sum of $10,000. Defendant has appealed. We have jurisdiction because of the amount involved since the appeal was taken prior to January 1, 1972, the effective date of new Art. V, § 3, Mo.Const., V.A.M.S. We reverse.

Plaintiff¹ was employed at a plant in Grandview which was 17 miles from her home. On the morning of January 22, 1968, the unexpected illness of the man with whom her husband rode to work made it necessary for her to take him. Because of that situation she knew she would be late to her work. They left home shortly after 6 a.m., and when they arrived at the place where William worked he told her to go north on North Manchester for about a mile to Levee Road and then turn left. There was a slight mist in the air and there were intermittent patches of fog. It was still dark and the roadway was damp.

Plaintiff testified that she had never been over this road and did not know that North Manchester formed a T intersection with Levee Road; that she was driving at 20 to 25 miles per hour and, after going ¾ of a mile, she came out of a blanket of fog and saw the sign for Levee Road; that there had been no signs warning that this was a T intersection; that she started to put on her brakes but that she had no idea whether the car started to slow down before it left the roadway; that she did not “jam” on the brakes for fear of spinning the car around; that she could not see the trees in the area beyond and assumed that North Manchester extended beyond the intersection; that she intended to make a normal stop and then either back up or turn around in order to go left on Levee Road; that she saw no other vehicles and was “pretty sure” she could have made her turn if she had been familiar with the road; that a car length is 15 or 20 feet, and she had no idea of the stopping distance of a car going 20 or 25 miles per hour; that she continued north, went across the width of Levee Road, the shoulder, and then down the embankment; that after leaving the shoulder the land does not drop “straight off” but slopes down the hillside.

A police officer who investigated the accident testified that North Manchester and Levee Road were each about 35 feet wide; that the car stopped 55 feet from the roadway and that the hillside dropped 25 or 30 feet in that distance; that he found plaintiff in a “more or less” stunned condition; that no skid marks were made by plaintiff’s car.

In answers to interrogatories defendant stated that it had no record of any signs, signal, or control devices on North Manchester within 500 feet of the intersection in question. There is no evidence as to the width of the shoulder on the north side of Levee Road but both sides accept the assumption that it was from four to seven feet.

Hillard Jackson, a witness for defendant, was on the premises of the city Refuse Plant near the intersection in question. He testified that he saw plaintiff’s car go by and would estimate her speed at 40 miles per hour; that he had a service truck radio for help and then went to the plaintiff’s car; that the levee slants at a 45° angle. Over objection, he was permitted to testify on cross-examination that other vehicles had “slipped off the levee.”

Another eyewitness who saw the car go over the embankment said it was “moving pretty fast.”

The plaintiff’s claims were submitted to the jury upon a required finding,

“First, that the roadway on which, plaintiff, Doris E. Watson, was traveling ended abruptly and there was a dangerous declivity at or near the edge of the roadway, and

“Second, the defendant knew or by the use of ordinary care should have known of the existence of such condition, and

“Third, the defendant failed to warn of such dangerous condition.”

We have concluded that the trial court erred in failing to direct a verdict for defendant or to enter an after-trial judgment for it. This for the reasons (1) that the installation of a traffic device or sign to warn of the T intersection would have been a governmental function, and negligence, if any, in respect thereto imposes no liability on the city; and (2) even if we disregard the governmental immunity doctrine, there is no duty on the defendant to warn of the danger of driving off the street in a situation such as the one heretofore described.

This court has said that “[I]t is well established that a municipality is not liable in tort for the negligent performance of its governmental as distinguished from its corporate functions. Cassidy v. City of St. Joseph, 247 Mo. 197, 152 S.W. 306; Pearson v. Kansas City, 331 Mo. 885, 55 S.W.2d 485; Auslander v. City of St. Louis, 332 Mo. 145, 56 S.W.2d 778; Car-ruthers v. City of St. Louis, 341 Mo. 1073, 111 S.W.2d 32; Blackburn v. City of St. Louis, 343 Mo. 301, 121 S.W.2d 727. See also 18 McQuillen, Municipal Corporations, 3d Ed., § 53.23. And it has repeatedly been held, and plaintiff concedes, that the regulation of traffic is a governmental function. Prewitt v. City of St. Joseph, 334 Mo. 1228, 70 S.W.2d 916; Auslander v. City of St. Louis, supra; Carruthers v. City of St. Louis, supra; Blackburn v. City of St. Louis, supra.” Hiltner v. Kansas City, 293 S.W.2d 422, 425 (Mo. 1956). Many other applicable cases are discussed in Gillen v. City of St. Louis, 345 S.W.2d (Mo.1961), and such discussion need not be repeated here.

In 18 McQuillen, Municipal Corporations, § 53.42, it is said that “[M]any courts have decided that a city functions in a governmental capacity in maintaining traffic signs, and in the operation of a traffic light system. Where this broad general rule is in effect, it follows that a municipality may not be held liable for an injury caused by the disintegration of a stop sign, or by the city’s failure to replace a missing stop sign, or for an injury resulting from the failure to keep traffic lights functioning properly.”

As indicated by the cases cited, it seems to us that there can be no reasonable argument concerning the validity of the proposition that the placing (or failure to place) of a sign on North Manchester to warn that the intersection in question was a T intersection is a form of traffic regulation, direction, or control, and hence a governmental function. It follows that there would be no liability on defendant for its alleged negligence in failing to install such a sign on North Manchester.

We have not overlooked the well-settled rule that it is the duty of a city to exercise ordinary care to keep its streets in a reasonably safe condition for travel and that it is liable in damages for its failure to do so. In this case, however, there is no contention that there was any defect or obstruction in the streets that made up this intersection and hence this rule would have no application.

Alternatively, plaintiffs have asked that, in the event we consider the doctrine of governmental immunity applicable, we review that doctrine and overrule it insofar as it applies to municipal corporations. We have frequently been asked to re-examine this doctrine and to abolish it by judicial decree but have steadfastly ruled that any change in the application of the doctrine should be accomplished by legislative enactment. See Fette v. City of St. Louis, 366 S.W.2d 446 (Mo.1963), and Smith v. Consolidated School District No. 2, 408 S.W.2d 50 (Mo. 1966). There are two reasons why we consider it unnecessary to re-examine the doctrine in this case. The first is that Division Two of this court very recently reviewed the soundness of the doctrine and rejected a request for the wholesale abrogation of it in the case of Payne v. County of Jackson, 484 S.W.2d 483 (Mo. 1972). Secondly, we hold herein that plaintiffs, aside from the immunity doctrine, are not entitled to recover.

As indicated, it is our view that the City is not liable because it had no duty to warn in the situation here presented. “It is well settled that there is no duty upon a city to erect guards to prevent drivers from leaving that part of the highway set aside for use by the public.” Hauck v. Kansas City Public Service Co., 239 Mo. App. 1092, 200 S.W.2d 608, 613 (1947). An exception to that rule is that a city is liable for injuries sustained by reason of its failure to barricade or warn of an excavation or other dangerous condition which is so near to the traveled portion of the street that a pedestrian, by accidental misstep or a vehicle occupant by a slight inadvertent deviation, is caused to be injured. Lavinge v. City of Jefferson, 262 S.W.2d 60 (Mo. App. 1953). That exception is not applicable in this case. This T intersection was not particularly dangerous. There were no defects or obstructions in the street itself. It was an ordinary T intersection and was no more dangerous than most all such intersections. Of course, almost every T intersection or jog in a street is dangerous if a driver goes through the cross street and departs into the area beyond. In most instances he would strike a building, tree, retaining wall, or other object that would cause injury. That was the type of situation plaintiff encountered. The north side of Levee was fairly level for a distance of from four to seven feet beyond the edge of the street and then descended into a rough and rocky area. Plaintiff’s car came to rest 55 feet from the street. That was not a slight deviation but a complete departure from the area of the intersection. The defendant was not required to anticipate that a driver would leave the traveled portion of the street in that manner. In fact, plaintiff testified that she thought she could have made her anticipated turn, after seeing the Levee Road sign, if she had been familiar with the intersection.

Our decision is supported by a number of cases which we will briefly review. In Lavinge v. City of Jefferson, supra, the T intersection was very similar to the one in the case before us. The plaintiff’s automobile went across the intersecting street and struck a low concrete wall erected along the street frontage of the abutting private property. In holding that the city was not liable for failure to barricade or warn, the court stated: “It cannot be said that the course taken by the operator was a slight or inadvertent deviation from the traveled portion of the highway provided by defendant, but a complete departure from the street over a course not shown ever to have been used for travel. Nor can it be said that the presence of grass and high weeds across the far side of the turn and in front of the abutting property was not reasonable notice and warning that the course of the street changed at that point and did not continue straight ahead. To require a city to barricade or to erect signs at all such turns in its streets to prevent its users from proceeding on into private property abutting such turns would be more than the law exacts.” 262 S.W.2d 64.

In Clinkenbeard v. City of St. Joseph, 321 Mo. 71, 10 S.W.2d 54 (1928), the city was held not liable where plaintiff’s car struck a utility pole located on the parkway about two feet from the street. In so ruling, the court stated: “It is palpable and plain that, had not plaintiff driven his automobile off the traveled and improved roadway, and over the 6 or 8 inch protecting curb which marked and designated its boundary, his automobile never would have collided with the pole within the parkway. The pole, according to the evidence, was not erected and maintained so close to the traveled and improved vehicular roadway as to endanger any one using such traveled and improved portion of the street in the ordinary manner and for the purpose for which such roadway was intended and improved. * * * In almost every city of size in the state, some streets and traveled roadways are laid out and improved without uniformity as to width of roadway or direction; that is to say, ‘jogs,’ ‘goose-necks,’ and cul-dé-sacs are of more or less frequent existence in all of the cities of the state, especially in residential districts; and to judicially say that, at every such place, a municipality must maintain some barrier or warning device, is more than we think the law requires.” 10 S.W.2d 62.

Another somewhat similar case is Sparks v. Kansas City, 236 Mo.App. 710, 160 S. W.2d 819 (1942). There the car in which plaintiff was riding continued straight ahead at a sharp curve in the street on a dark foggy night and went over a precipice some distance away. In holding that plaintiff could not recover the court stated: “[W]e are unwilling to hold that the city must be charged with the knowledge that a pedestrian or an automobile driver on the street or sidewalk will leave the well defined improved part of the street or sidewalk which has been set aside by the city for use and wander off on property or in territory which the city has not designated and prepared for travel; and that the city should be required to erect fences, barricades or signs to prevent such wandering. There is no state statute or city ordinance, of which we have any knowledge, making such requirement and we do not believe the common law makes any such requirement.” 160 S.W.2d 822.

Other cases supporting our view are Hauck v. Kansas City Public Service Co., supra; Bassett v. City of St. Joseph, 53 Mo. 290 (1873); Griffin v. City of Chilli-cothe, 311 Mo. 648, 279 S.W. 84 (1925); Belt v. City of Grand Forks, 68 N.W.2d 114 (N.D.1955), citing with approval four Missouri cases; and Henderson v. City of St. Paul, 216 Minn. 122, 11 N.W.2d 791 (1943).

Plaintiff contends that the City had a duty to warn because the dangerous declivity existed in close proximity to the traveled portion of the streets involved and thus was a hazard to her while operating her car on those streets. As heretofore indicated, we do not agree. If plaintiff had attempted to make the turn, and her car had veered a foot or two from the paved portion of the street into an excavation or other dangerous situation, her contention might be considered valid. But, as heretofore stated, that was not the situation. There was a level area of from four to seven feet north of Levee Road before the hillside began to descend. Plaintiff was injured because she made a complete departure from the roadway for a distance of 55 feet.

The cases .upon which plaintiffs rely are all distinguishable upon the facts from the instant case and do not support their contentions. For example, in Chance v. City of St. Joseph, 195 Mo.App. 1, 190 S.W. 24 (1916), the city was held liable for failure to barricade a public street which ended (not a T intersection) at the crest of a “precipitous declivity.” The city was held liable in Williams v. City of Mexico, 224 Mo.App. 1224, 34 S.W.2d 992 (1931), where the unbarricaded street led to a point near where a bridge had been torn down so that the car was driven off a precipice. And in Treon v. City of Hamilton, 363 S.W.2d 704 (Mo.1963), a recently abandoned roadway led to a point where a wide ditch had been dug across the road. The city was held liable for failure to barricade or warn.

In view of the conclusion we have reached on the issues heretofore discussed, we need not consider the defendant’s contention that plaintiff was guilty of contributory negligence as a matter of law.

The judgments are reversed.

DONNELLY, C. J., and HENLEY, J.. concur. FINCH, J., concurs in separate concurring opinion filed. SEILER, J., dissents in separate dissenting opinion filed. MORGAN and BARDGETT, JJ., dissent and concur in separate dissenting opinion of SEILER, J.

1 . We hereinafter refer to Doris in the singular as plaintiff.