Porter v. Anheuser-Busch Brewing Ass'n
| Decision Date | 21 December 1886 |
| Citation | 24 Mo.App. 1 |
| Parties | A. B. PORTER, BY NEXT FRIEND, Respondent, v. ANHEUSER-BUSCH BREWING ASSOCIATION, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.
Reversed and remanded.
BROADHEAD & HAEUSSLER, for the appellant.
A. R TAYLOR and D. C. MCGOWAN, for the respondent: A person without fault on his part, sustaining an injury through direct contact with an obstruction on the highway, may maintain a private action for damages. Fox v Sackett, 10 Allen 535; Kessel v. Butler, 53 N.Y. 612; 1 Thompson on Negligence, 341, with authorities therein cited. A child of tender years, or an old or infirm person, is expected to exercise no more than that degree of care due from those of his age or condition. Boland v. Railroad, 36 Mo. 484; Isabel v. Railroad, 60 Mo. 475; 1 Thompson on Negligence, 431, with authorities therein cited.
This is an action to recover damages for injuries to the plaintiff's person. The plaintiff was, at the date of the accident complained of, four year sand five months of age. The issues made by the pleadings are as follows:
The petition alleges that Albert B. Porter, a minor, between the age of five and fourteen years, on or about the twenty-eighth day of May, 1884, was walking with due care along the sidewalk on the north side of Pestallozzi street, between Eleventh and Thirteenth streets, in the city of St. Louis; that the defendant's agents and servants were engaged at work at the same time and place at the hop storage house of the defendant, on the north side of said sidewalk, using a portable furnace, containing coal and cinders; that said furnace was negligently left by the defendant's servants on said sidewalk on which said Porter was walking; that it was an attraction to children to play, and that said Porter, on account of his tender age and inexperience, was attracted to said furnace, and in examining its contents upset said furnace and scattered the burning coals over his feet and legs, and was burned and permanently injured, etc., and suffered great pain and suffering therefrom; that said injuries were caused by the carelessness of the defendant's servants in leaving said furnace on the public highway.
The answer of the defendant specifically denied these allegations of the petition and alleged and charged the truth to be that said Porter, with other mischievous and reckless boys, against the warning and threats of those using a furnace on the defendant's premises, upset and threw over a large, heavy iron furnace, with the wicked desire of injuring the defendant and annoying those using said furnace, and that the act of said Porter and those assisting him therein was the direct cause and directly contributed to all the injuries sustained by said Porter.
The allegations of the answer were denied by reply. The trial resulted in a verdict and judgment for the plaintiff in the sum of one thousand dollars, and the defendant appealing assigns for error: (1) That the court refused to issue a venire for a special jury, as requested by the defendant. (2) That the verdict is excessive. (3) That the court refused proper instructions and gave illegal instructions to the jury.
I. The first objection is not preserved in the motion for new trial, which dispenses with the necessity of expressing any opinion as to its merits.
II. Where the damages can not be measured by any fixed legal standard, they are necessarily to a great extent, within the discretion of the jury. Unless the verdict is so excessive that it is the obvious result of bias or prejudice on the part of the jury it should not be disturbed. There is some evidence in this case that the injuries to the plaintiff's person were of a permanent nature, and the verdict can not be disturbed on appeal, on the ground that the weight of the testimony is the other way. The question resolves itself simply into one affecting the weight of the evidence on that particular point, and is not debatable on appeal.
III. The defendant at the close of the plaintiff's case, and at the close of the entire testimony, demurred to the evidence by instructions. These instructions were by the court refused. At the instance of the defendant the court gave the following instruction:
" If when the servants of the defendant in charge of the furnace in question, left the said furnace for the purpose of attending to their work, the furnace was of such weight, and in such a position that a man of ordinary prudence could not have reasonably supposed that a boy of the age and size that the plaintiff then was, would be able to upset the same, then the fact that it was left unguarded and filled with burning coals is not such negligence as would render the defendant liable in this action."
This instruction, under the facts of the case, states the law correctly. It was equivalent to a declaration that the plaintiff could not recover because there was no substantial legal evidence authorizing the jury to find the facts, even by inference, otherwise than as stated in this instruction. The jury may draw legitimate inferences from facts proved on the theory of ordinary presumptions, but can not found their verdicts on mere conjecture. It results from this that the court should either have sustained the defendant's demurrer to the evidence, or else vacated the verdict as against the law declared by itself.
It is neither averred nor shown that the implement was a nuisance in itself, or that its position on the sidewalk was unlawful, so that the cases of Kessel v. Butler, (53 N.Y. 612); Fox v. Sackett (10 Allen 535), and Weick v. Lander (75 Ill. 93), all of which turned on the unlawfulness of the obstruction, have no application.
The plaintiff evidently seeks to recover on the theory that the owner of property may become liable to a trespassing child who is hurt because the property has been negligently left in an unguarded and unsafe condition. Railroad v. Stout, 17 Wall. 657; Keefe v. Railroad, 20 Minn. 207; Fink v. Missouri Furnace Co., 10 Mo.App. 61. But it has not been held in either of these cases that a recovery can be had against the owner, without proof that the condition of the property was the probable cause of the accident which might have been foreseen as a reasonable probability by the defendant or the defendant's servants.
In the case at bar, whether we examine the plaintiff's testimony alone, or in conjunction with the defendant's testimony, these elements seem to be wholly wanting.
The remark made by one of the plaintiff's witnesses who saw the machine, " that it was a shame to leave such a machine on the sidewalk," is relied on in argument as substantiating a controverted fact. It is not apparent on what theory such remarks are admissible at all in evidence, being evidence only of the state of the witness' mind and feelings at the time, which is immaterial to any issue in the case. The only other evidence claimed by the plaintiff as bearing upon the fact, is the testimony of a witness who saw the furnace after the accident, when it was partly emptied, and was confessedly in another position than it had been in before the accident, and who stated that in trying to tip it, it tipped easily. The defendant objected to this testimony at the time, and the court should have sustained the objection, because the testimony furnished no evidence of the fact, essential to be proved, that the defendant's servants had reasonable cause to apprehend a probable danger resulting from the condition in which they left the furnace prior to the accident.
Turning from the plaintiff's evidence to the uncontradicted facts, as they appear by the defendant's testimony, and the following appears: The furnace shortly before the accident was standing either on the sidewalk, or else partly on the sidewalk and partly in an area-way on substantially level ground. It weighed one hundred and eighty pounds when empty and two hundred and seventy pounds when filled with coal. It could not be upset except by the exercise of great force, one witness stating that it would take two strong men to turn it over.
Surely no inference can be drawn from this testimony, that the defendant's servants could anticipate the probability of the furnace being upset by a child. Nor is there in fact any evidence that it was so upset, much less that it was accidentally upset as charged in the plaintiff's petition. From the fact that some of the coal and cinders were scattered over the sidewalk after the accident, which...
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