
    Mary E. Cunningham, Respondent, v. City of Springfield, a Municipal Corporation, and Springfield Gas & Electric Company, a Corporation, Appellants.
    31 S. W. (2d) 123.
    In the Spring-field Court of Appeals.
    July 29, 1930.
    
      
      E. A. Barbour, Jr., for appellant, City of Springfield.
    
      Frank B. Williams and John L. Graves for appellant, Springfield Gas & Electric Company.
    
      Wear (& Benton and Arch A. Johnson for respondent.
   COX, P. J.

Action for damages for personal injury. Plaintiff recovered and defendants appealed.

The St. Louis-San Francisco Railway Company was also a party defendant but by peremptory instruction to the jury, a verdict was returned in its favor, hence it is out of the case.

The plaintiff rode as a guest in the automobile of her husband who drove to the depot of the railroad company on a dark, rainy night to mail a letter. He drove off the west side of the street on to a paved parking space on the south side of the depot and parked his car there while he went through the depot to the other side and deposited his letter in a mail box. He then returned to the car and drove around some other parked automobiles and then turned to drive back east into the street in order to return home. After he passed the east line of the railroad property a little more than eight feet his car collided with an electric light pole situated a few inches west of the west line of the paved part of the street proper and inside of the east line of the sidewalk and as a result of that collision his wife, this plaintiff, was injured.

The evidence tends to show that the railroad owns an area of ground on the south side of this depot and abutting on the west side of Main Avenue in the City of Springfield, a distance of about one hundred seventeen feet. Main Avenue was widened and paved by the city from College Street running north past the area of ground above referred to as belonging to the railroad. From College Street north an integral curb was built on the west side of the paved part of Main Avenue until it reached the south line of the railroad property above described. At that point the curb was discontinued and a concrete sidewalk nine and one-half feet wide connecting with the street paving on the west side thereof and extending west to the property line of the railroad and running north the entire length of the railroad property was constructed by the railroad. There was no curb constructed at the curb line along the railroad property but instead there was a slight depression there for drainage purposes. Along the entire length of the railroad property there was no curb- on the west side of Main Avenue but the concrete street paving and the concrete sidewalk were connected. The strip of ground owned by the railroad on the west side of Main Avenue and south of its depot had been improved by the railroad as follows: Eighty-four feet on the north side of this strip abutting the west side of M|ain Avenue had been paved from said street back west a considerable distance. The- remainder of the strip abutting the west side of Main Avenue was covered with chats and its surface was level with the paved portion of the strip and also level with the west line of the concrete sidewalk. The light pole with which the automobile in which plaintiff was riding collided was located about three inches south of the south line of the paved portion of the railroad property and in the sidewalk portion of the street about seven or eight inches west of the west line of the street paving proper of Main Avenue. In passing from Main Avenue into the area of ground owned by the railroad and in coming back from that area to the street persons in automobiles drove on both sides of this light pole.

The petition alleged that this light pole w'as negligently erected and maintained by defendants in a public driveway without being-fenced, guarded or marked in any way so ‘as to apprise persons using said driveway of its presence therein.

Plaintiff testified that she was keeping a lookout as best she could but in the darkness and rain she could not distinguish through the windshield objects in front of the ear and she did not see Jhe light pole until after the car struck it. That, the car was being driven slowly by her husband at the time. Other witnesses also testified that the night was very dark and in the rain and darkness the pole could not be distinguished by a person coming toward the street from the railroad property. There was a street light on a bracket on the east side of this pole about eighteen feet above the ground but it did not throw light west of the pole to any considerable ex.tent. The pole was black and that fact coupled with the fact that it was raining hard and the night was very dark made it very hard to see the pole when approaching it from the west. Neither plaintiff nor her husband saw the pole as they drove from the street on to the railroad property. and did not know it was there until the ear struck it. One witness who knew the pole was there was driving out from -the depot about an hour after this accident and was looking for the pole in order to avoid striking it and could not see it and after putting his foot on the brake, he, as he stopped, as he described it crept into the pole. The evidence of this witness and another witness who was there about an hour before this accident, went in over the objection of defendants.

We think the foregoing a sufficient outline of the material facts proven that are favorable to plaintiff. A demurrer to the evidence was filed and overruled and that .action of the court is assigned as error. It is practically conceded by respondent that the city and the lighting company had the right to place the light pole where it was placed but insist that when so placed it was the duty of defendants to protect the users of the driveway by marking the pole in such a way as to apprise parties traveling there of the presence of the pole so that they could avoid striking it in all kinds of weather and since the evidence most favorable to plaintiff! shows that on this occasion the pole was not visible to a person in an automobile driving toward the street from the railroad property on the west, a case was made for the plaintiff. There is another fact that must also be considered in this connection and that is that plaintiff was not driving the car. It was driven by her husband and she occupied the legal status of a guest and even if her husband were negligent in not discovering the pole and avoiding the collision, that negligence was not imputable to her. If defendants were negligent and their negligence caused or helped to cause the collision and consequent injury, she is not barred from recovery by the fact, if it be a fact, that her husband was also negligent. The light company erected and maintained the pole but did it under the sanction of the city and by its permission so that if the light company was negligent, the city was responsible also. Looking at the physical facts shown by the testimony outlined we find that while this light pole was located a few inches beyond the curb line of the street in the edge of the sidewalk area, yet the curbing had been stopped some twenty-five or thirty feet south of this pole and hence the pole was located at a point where the street and sidewalk were united and formed a continuous driveway for the use of the public in passing from the street to the railroad depot. Yehicles drove over this driveway on both sides of this pole so that for the purposes of this case, the pole was clearly located in the public driveway unprotected and with nothing to make it visible to persons approaching from the west in the nighttime. The light on the east side of this pole did not show sufficient light to the west of the pole to make the pole visible to persons approaching it from the west in the darkness of a rainy night. The city and the light company ought to have known that persons were likely to travel over the driveway from the street to the depot at any time in the day or night and in all kinds of weather and ought to have seen to it that this pole was so marked or. guarded as to prevent collisions with it. It is contended that the portion of the area owned by the railroad and covered with chats was not intended for the use of the public in passing in and out from the street to and from the depot. The physical facts are against this contention. If it were intended that all travel should go north of this pole and on to the paved part of the area belonging to the railroad, then the curb at the west side of the street should have been extended from the south to a point even with the pole which would have induced the public to go around that point before leaving the street to come on to the railroad property. If that were not done, a fence or posts set to prevent traffic from passing in and ont over the ground covered with chats could have been placed along the east end of the chatted surface from the south to a point even with or beyond the pole so parties could not pass in and out south of this pole. As it stood, however, with no curb opposite this chatted area and no fence or posts or other obstruction to a free passage of vehicles both in and out south of this pole coupled with the fact- that the surface of the chatted area was level with both the sidewalk and the paved part of the railroad area amounted to an invitation to the public to use the space south of this pole the same as they used the space north of it if they saw fit to do so. The evidence most favorable to plaintiff shows this pole standing* in a public driveway at a place where automobiles passed on both sides of it and if defendants be permitted to maintain it at that place, they should provide some mfeans to render this pole visible to travelers at all angles in all kinds of weather both day and night and if that were not done, then the public should, in some way, have been prevented from passing this pole on the south side. It is said that it is the duty of the driver of an automobile to use the highest degree of care to discover and take notice of the existence of such constructions within, the limits of street lines as the necessities of street lighting render common and being charged with knowledge of such construction may not proceed as though such construction did not exist and we are cited to Johnson v. Southern Bell Telephone Company, 281 Mo. 360, l. c. 370, 217 S. W. 831, and Woodson v. Metropolitan Street Railway Co., 224 Mo. 685, l. c. 699, 123 S. W. 820, as sustaining that position. Neither of these eases nor any other that we have found hold that a person who has no actual knowledge of the conditions is chargeable with knowledge of the presence of a pole in the middle of a street which it is impossible under the conditions at the time for him to see.

It is clear to us that the location and maintenance of this pole by defendants at the place where it was located with no provision to make the pole visible from the west on a dark rainy night was sufficient to make the question of their negligence one for the jury.

Error is assigned in the admission of testimony by two witnesses who had driven cars from Main Street on to the area belonging to the railroad company and had driven out, one about an hour before this accident and the other about an hour after the accident, to the effect that they knew that the pole was there and looked for it as they drove out but could not see it. One of these testified that he put his foot on the brake of the car and stopped and then found that his ear was up against this pole. He was watching for the pole but could not see it until his car came up against it. A great number of cases are cited which hold that to make independent acts not connected with the occurrences in issue admissible, the similarity of the essential conditions of operation must be shown to be practically the same. That rule is well established but we think the evidence of these two witnesses, Coates and McCutcheon, comply with the requirements of the rule. Their presence at the place was within one hour of the time of this accident and the conditions' as to darkness and rain were practically the same. If these men could not see this pole when approaching it from the west at a time within about one hour from the time that this accident occurred, that fact would corroborate plaintiff and her husband that they could not see it. We think this testimony admissible.

It 'is contended that as plaintiff had no business to transact at the depot that she was only a licensee while on the railroad property and that the city and the light company owed her no duty as to the location or condition of the light pole. That question is not in this case for the reason' that the accident did not ocur on the railroad property. It'was stipulated at the beginning of the trial that this pole was located eight feet and some inches east of the east line of the railroad property. The collision occurred off the railroad property and within the lines of the street. The question of a person being an invitee or a licensee does not apply to persons in a public street. Under the evidence in this case, the plaintiff became a traveller upon a public street the instant she reached the line of the street, and the accident occurred over eight feet beyond that line.

The contention is made by appellants that the sole cause of plaintiff’s injury was the negligence of plaintiff’s husband in not discovering the light pole and avoiding it. We do not think the evidence warrants a conclusion of that kind as a matter of law. The plaintiff was a guest in the car and not responsible for the negligence of her'husband, if he were negligent, and his negligence would not bar her right of recovery if defendants were also negligent and their negligence contributed to plaintiff’s injury.

Plaintiff’s Instruction A is assailed on the ground that it is broader than the scope of the petition and the proof. We have carefully examined this instructoion and do not think it open to the objections made against it. The instruction is quite long and we do not deem it necessary to set it out in full but if it were, what we have already said as to the evidence in the case, would necessitate our holding against the contention of defendants in their objections to this instruction.

We find no reversible error and the judgment will be affirmed.

Bailey and Smith, JJ., concur.  