Turner v. Haar

Citation21 S.W. 737,114 Mo. 335
PartiesTurner v. Haar, Appellant
Decision Date27 February 1893
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Reversed and remanded.

Beebe & Watson for appellants.

(1) To establish her case it was necessary for the plaintiff affirmatively to prove that the building was not "strong enough to withstand the ordinary storms common to the locality" and that defendants knew or by the exercise of ordinary care might have known this fact in time to have warned the plaintiff. There can be no doubt of this proposition of law, and the court in instruction numbered 3 for the defendant so declared. Stoher v. Railroad, 91 Mo. 509; McPherson v. Railroad, 97 Mo. 253; Flori v. St. Louis, 69 Mo. 341; Railroad v Reeves, 10 Wall. 176. (2) The plaintiff adduced no testimony from which the jury could by any process of fair reasoning infer that the building was not strong enough to withstand ordinary storms common to the locality. Therefore the court should have given defendant's first instruction directing a verdict for defendant. (3) The court erred in admitting the testimony of Van Patten and Wolf as to the cause of the crack in the wall. First. It was not a matter calling for expert testimony. Rogers on Expert Testimony [2 Ed.] p. 22. Second. The questions were so framed as to permit the witnesses to draw their own inferences as to the nature truth and weight of the testimony of plaintiff in reference to the crack; this was erroneous. Rogers on Expert Testimony [2 Ed.] p. 62; State v. Bowman, 78 N.C. 509. (4) The court also erred in admitting the testimony of Van Patten Wolf and Cross as to the nature and effect of vibratory motion. First. It was not a subject calling for expert testimony. Second. If it was a proper subject for expert testimony neither Van Patten nor Wolf were shown to be competent to express an opinion. Third. The questions propounded to these witnesses did not furnish data sufficient for them to give an opinion relevant to the case. Gutridge v. Railroad, 94 Mo. 468; Haggerty v. Railroad, 61 N.Y. 624; Davis v. State, 35 Ind. 496; People v. Millard, 53 Mich. 63; Hagadorm v. Ins. Co., 22 Hun 249; Craig v. Railroad, 98 Ind. 109; McMechen v. Mechen, 17 W.Va. 683; Guiterman v. Steamship Co., 83 N.Y. 358; Bevins v. Barnfield, 84 Ind. 43. (5) The first instruction given on behalf of plaintiff was erroneous to the prejudice of the defendants in the following particulars: First. There was no testimony justifying the submission of the case to the jury. Second. It leaves out of consideration entirely the extraordinary storm (disclosed in plaintiff's own case) as a factor, for the consideration of the jury in arriving at a verdict. Third. It assumes there was evidence that the building fell, instead of being blown down, and was thus erroneous and misleading. Fourth. It declares the mere falling or blowing down of the building prima facie evidence of the right of plaintiff to recover, shifting the burden of proof upon the defendants to show affirmatively that they were guilty of no want of ordinary care in selecting the building. Wharton on Negligence [2 Ed.] sec. 128-129. Fifth. It authorizes a recovery, notwithstanding the knowledge of plaintiff of the alleged defective condition of the building, and continuance of service after such knowledge. Sixth. It does not require the jury to find that the alleged defects in the building caused the injury. (6) The second instruction is also erroneous in that: First. There was no evidence authorizing the court to submit the case to the jury. Second. It leaves out of consideration the prevalence of the extraordinary storm disclosed by plaintiff's own testimony. Third. It fails to submit the vital question of whether the alleged defects in the building or the manner of its use rendered it insufficient to withstand the force of ordinary storms. Fourth. But on the contrary assumes that there was evidence tending to show that the building fell instead of being blown down.

Sherry & Hughes for respondent.

(1) The theory upon which the case was presented and tried upon the part of the plaintiff was that the building was not of sufficient strength for the purpose for which it was used, and therefore it was not necessary as claimed by the appellant for the plaintiff to prove that the building was not "strong enough to withstand ordinary storms." If the building fell from some other cause than that alleged by the plaintiff, then, as we understand it, it devolved upon the defendant to prove that the building fell from some other cause than that alleged by the plaintiff. (2) If the evidence was conflicting as to what caused the building to fall, then it was a question of fact for the jury to determine. (3) It was competent to prove by experts, after calling their attention to all the facts and circumstances connected with the construction of the building and its use, to ask them what, in their opinion, caused it to fall. Rogers on Expert Testimony, p. 49; Leopold v. Van Kirk, 29 Wis. 548; Andre v. Harden, 32 Mich. 326; Brown v. Chenoworth, 51 Tex. 469; Tullis v. Kidd, 12 Ala. 648; DePhul v. State, 44 Ala. 39; Brabe v. Martin, 3 La. 177. (4) The court did not err in admitting the testimony of experts as to what effect the vibratory motion would have upon a building, as it is clearly a proper subject calling for expert testimony. First. The subject-matter was within range of the peculiar skill of the witnesses, and, second, the inquiry was directed to a matter of which the ordinary knowledge and experience does not enable to see what inferences should be drawn from the facts. Rogers on Expert Testimony, p. 18, and cases cited. (5) The question as to whether the witnesses possessed the necessary qualifications to enable them to testify as experts was a question for the trial court, and was within its discretion. Rogers on Expert Testimony, 25-26; Jones v. Tucker, 41 N.H. 547; Dale v. Johnson, 50 N.H. 452; Boardman v. Woodman, 47 N.H. 120. (6) The first instruction given on the part of the plaintiff was not erroneous; it does not leave out of consideration the fact of a storm; it does not assume that the building fell instead of being blown down; it does not declare that the falling or blowing down of the building was prima facie evidence of the right of plaintiff to recover, nor does it shift the burden of proof upon the defendants.

Macfarlane, J. Barclay, J., concurs on the ground stated in the fourth paragraph of the opinion.

OPINION

Macfarlane, J.

The suit is to recover damages for personal injuries received by plaintiff, by reason of the fall of a building, in which she was employed by defendants to work; caused, as alleged, by its defective construction and improper use.

The petition charged that defendants were lessees and occupants of a four story brick building in Kansas City, in the second, third and fourth stories of which they were carrying on the business of manufacturers of overalls and pants; that on the eleventh of May, 1886, plaintiff was, and for a long time prior thereto had been, with others, employed by defendants in the third story of said building in making these articles. "That the several floors of said building were insufficiently sustained and constructed; that the said building and the various parts thereof were weak, insecure, and insufficient for the business then and there carried on therein by defendants, or to sustain said building; that the joists supporting the floors of the third and fourth stories of said building were weakened and rendered more insecure, unsafe and unfit for use and occupation by defendants, as aforesaid, by placing on the fourth floor of said building a steam-engine of the weight of three tons, and by operating the same in the manufacture of overalls and pants; all of which matters and things, on the day and year last aforesaid, were, and for a long time prior thereto had been, known to defendants and unknown to plaintiff. That on said day, while engaged in her work in the third story of said building, and being ignorant of any danger, the whole of said building, together with the machinery therein, fell, by which plaintiff was injured," etc.

It appears from the evidence that defendants were lessees of the building, which was made of brick with a stone foundation, and was four stories high. They moved into the building in September, 1885. The boiler and engine were removed from the fourth story of the former place of business and put in the third story of this building about March, 1886. The engine was used to run twenty to twenty-five sewing machines. During the prevalence of a storm, on the eleventh of May, the roof was blown from the building, the walls and floors fell and plaintiff was carried down with the building by which she was injured.

The evidence of plaintiff tended to prove that the building was twenty-five feet wide and one hundred and six feet long, from north to south, and fronted south. Another brick building composed the east wall, to which this one was bound by strap-iron anchors every ten or sixteen joists on each floor. On the third floor at the north end there was a crack or opening between the walls of the two buildings large enough for plaintiff to see through, and into which she could put her hand. This opening extended from the bottom to top of building. There was an elevator way cut up through the joists from the bottom to the top. A stairway was built inside the building on the west side to the third story and on the east side from the third to the fourth story. In the third floor was placed a steam boiler and engine and eighty feet of line shafting along the west side of the building and attached to the floor by means of iron brackets for the purpose of...

To continue reading

Request your trial
6 cases
  • Rock v. Keller
    • United States
    • Missouri Supreme Court
    • 6 Enero 1926
    ... ... judgment of the trial court, which should therefore be ... reversed with directions to enter a judgment establishing the ... will. Turner v. Anderson, 260 Mo. 17; Story v ... Story, 188 Mo. 128; Buswell on Insanity, secs. 189, 190; ... Richardson v. Smart, 65 Mo.App. 19; Creagh ... ...
  • Albright v. Stevenson
    • United States
    • Missouri Supreme Court
    • 31 Marzo 1910
    ...and was overwhelming and uncontradicted by any other expert testimony. 5 Ency. Ev., 534, 547; Railroad v. Finley, 38 Kan. 550; Turner v. Harr, 114 Mo. 335; Riley State, 44 S.W. 498; Tyler v. Todd, 36 Conn. 218; Jones v. White, 11 Humph. (Tenn.) 268; Hyde v. Woolfolk, 4 Ia. 159; 6 Ency. Ev.,......
  • Kostuba v. Miller
    • United States
    • Missouri Supreme Court
    • 26 Enero 1897
    ... ... is conclusive. Thompson v. Ish, 99 Mo. 160; ... Gates v. Railroad, 44 Mo.App. 488; Turner v ... Harr, 114 Mo. 335; State v. Cole, 94 N.C. 958; ... Flynt v. Bodenhamer, 80 N.C. 205. (5) This being a ... trial before the court great ... ...
  • Robinson v. City of St. Joseph
    • United States
    • Kansas Court of Appeals
    • 5 Enero 1903
    ...except what might have been expected of any of the jurors. Such evidence is misleading and was prejudicial to the defendant. Turner v. Hoar, 114 Mo. 335; Goins v. Railroad, 47 Mo.App. 173; v. Medart, 136 Mo. 595; Naughton v. Stagg, 4 Mo.App. 271; Thompson v. Ish, 99 Mo. 160; Gates v. Railwa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT