28 S.W. 620 (Mo. 1895), Steinhauser v. Spraul
|Citation:||28 S.W. 620, 127 Mo. 541|
|Opinion Judge:||Sherwood, J.|
|Party Name:||Steinhauser v. Spraul, Appellant|
|Attorney:||Broadhead & Hezel and H. A. Haeussler for appellant. J. Hugo Grimm for respondent.|
|Judge Panel:||Sherwood, J. Robinson, J., concurring with Judge Sherwood in the opinion, Macfarlane, J., in the third paragraph, Barclay, J., specially, Brace, C. J., Gantt and Burgess, JJ., dissenting. Barclay, J. concurring. Per Curiam. -- The judgment herein is reversed and the petition dismissed, as directe...|
|Case Date:||March 19, 1895|
|Court:||Supreme Court of Missouri|
Appeal from St. Charles Circuit Court.
Action for damages. The substantial portion of the petition is as follows:
"That, heretofore, to wit, in the month of , 1887, she was engaged by Erwin Spraul, then husband of defendant, but since deceased, as a cook at his residence, and that she continued in her said employment for said Spraul until about the first day of June, 1889; that while she was thus engaged, she was under the direction and control of defendant, the wife and agent of said Erwin Spraul.
"And plaintiff further states, that, heretofore, to wit, on the eighth day of May, 1889, and while in the service aforesaid, and performing the duties as cook as aforesaid, under defendant's directions, defendant carelessly and negligently ordered plaintiff to climb up a ladder and into the pigeon loft, which occupied the upper portion of a shed situated in the rear yard of said Spraul's then residence, number 3040 South Ninth street, in the city of St. Louis, and fetch some pigeons therefrom, defendant well knowing that it was dangerous for a woman to climb into said loft, and well knowing that the ladder was supplied for that purpose, and which she directed plaintiff to use, was not adapted to that use, but by reason of its length could not be used in climbing into said loft with safety; that defendant knowing the dangerous character of the task she assigned plaintiff, and that the ladder furnished for performing it was not adapted for such use, but unsafe and dangerous for such purpose, nevertheless negligently commanded plaintiff to climb into said pigeon loft.
"Plaintiff further states that, in attempting to comply with said command and climb up said ladder into said loft, having ascended said ladder to the height of the opening into said loft, and while attempting to enter said opening, she, plaintiff, owing to the improper length of said ladder, fell therefrom to the ground below, thereby fracturing her hip bone in such a manner that she was confined to her bed for many weeks and will be permanently crippled. Plaintiff further states that she has suffered great pain of body and mind since the happening of said accident, has been prevented from following her occupation and put to great expense for medicine and medical attendance, all as a result of said accident.
"Wherefore plaintiff prays judgment against defendant for $ 20,000 and her costs."
The answer was in effect a general denial coupled with a plea of contributory negligence. The reply was also in substance a general denial of the allegations of the answer.
Plaintiff's testimony is substantially this:
"I am the plaintiff. I know Mrs. Gruen; I worked at her house in St. Louis. * * * I began working December 13, 1887; worked two years and five months up to the time I was hurt. Just before I was hurt she said: 'Anna, go up and get down the pigeons, so that grandmother can clean them before she washes the dishes.' I went there. I stood the ladder as always, and as I wanted to enter I lost my hold and fell. * * * The step of the ladder did not fit with the entrance. I had to stand the ladder against the smaller shed. The right side of the ladder was on the north side of the big shed. The top of the ladder extended over the little shed. The door when open did not go back against the shed; a little platform the pigeons sat on was there. Mrs. Spraul had sent me up the ladder before. She asked me why I did not stand the ladder over further, and said I would fall down there some time. I told her I could not stand it any other way because the ladder did not fit. * * * I used the ladder from which I fell about four or five times. It was the height of the big shed. This was the only ladder about for the purpose of climbing into the shed.
"The ladder was made in the brewery. * * * I got the pigeons out of the loft four or five times a year. Mrs. Spraul had the ladder made for the purpose of getting the pigeons out. It was not used much otherwise. There was an old ladder there at first; it went to pieces. I have told all Mrs. Spraul said about getting the pigeons. * * * I got the ladder from a corner on the north side of the lot, and set it up against the shed just the same as I always did. Mrs. Spraul did not tell me how to set it up. I set it up the best way I could. I had to crawl into the opening. I did not get quite to the opening. I opened the door the same as I had always done before. I had to lean over diagonally. It is about a good step. I had made that step as often as I went up. I took hold of the door. * * * I lost the hold of my hands and feet. When I was off the ladder and wanted to enter the opening, I lost my hold of the loft at the opening. I stood on the ladder and put my hands on the opening; I wanted to step into the hole, and in so doing I lost my hold on the loft and fell. I had to get off the ladder. I had gotten off the ladder and got on the pigeon loft. * * * I fell on the bricks, not on the wood lying there. I was hanging by my hands from the bottom of the loft and fell down. From the bottom of the opening where I laid my hands to the walk was about eleven feet. * * * I did the best I could. Nobody told me how to enter. I am thirty years of age. The ladder was new. * * * I could not help letting loose. I held on as long as I could. I called to no one to help me. * * * When I went up there I did not know I was going to fall down or I would not have went up there. I just noticed that it was dangerous after I had fallen down. I did not take any notice of whether the ladder was perfectly good to do that thing with or not.
"The old ladder was better. I could put that under the opening and get right into the loft. The other ladder I had to stand at this place and get in sideways. The old ladder broke and the new one was made. There was a step ladder there but I could not use it for this purpose; it was seven or eight feet long and was used to clean the windows. The top of the ladder when I fell from it, rested against the small shed, which was seven inches from the opening. With the ladder placed similarly I went into the loft four or five times. I used the ladder in the same way. If I had had a ladder which I could have placed under the opening, I could have gone in that way.
"The Court: State what caused the accident this time. Answer. I lost my hold; I caught hold of the opening with my hands and my hands slipped. I held myself in the corner, in the bottom of the opening at the side and bottom. I had to go in with my head first. I wanted to put my hands in the corner of the opening, slip in my head and body in that way. That was the way I always did. I tried it this time, but my hands slipped and I fell down."
There was evidence that immediately after the accident, defendant sent another female servant after the pigeons, and that she went up the same ladder and got them. There was evidence also that other servants had used the same ladder in getting pigeons down from the loft; that Erwin Spraul, the deceased husband of defendant had the new ladder made; that after plaintiff had fallen as aforesaid, defendant had ordered the top of the ladder to be cut off, which was done; that the ladder was higher than the big shed; that the bottom of the opening into the shed where the pigeons were, was eleven feet one inch; that the plaintiff's father, some six weeks before she fell, had told defendant that the ladder "was dangerous," but did not say in what respect; that the main shed was sixteen feet, two and one half inches high, and the lower shed was twelve feet, ten inches high and distant about eleven inches from the taller shed where the pigeons were.
At the close of evidence for plaintiff, defendant asked an instruction in the nature of a demurrer to the evidence, which was refused.
Thereupon, on part of defendant, evidence of one witness was introduced that plaintiff said to her a short time after the accident, "I fell, unluckily. I have gone up the ladder so often to get pigeons and nothing happened, and on this day I had to be unfortunate, but I can not blame anybody."
Another witness testified that he asked plaintiff about the matter: "What did you do? and she said, I and Susan had made humbug in the yard; I made a false step and fell down; she further said, I can't blame anybody." Two other witnesses testified to similar statements made by plaintiff as that testified to by the first witness for the defense. Part of this testimony plaintiff denied, to wit: that she admitted she had said it was her own fault and she did not blame anybody; but as to the testimony of two witnesses that she had "made humbug in the yard" etc., she merely said, "I do not remember talking about this accident," etc.
Defendant testified that plaintiff was making fun with Susan (the other hired girl) by putting her foot out and while making fun made a false step and fell. This testimony of defendant's was not denied by plaintiff. Defendant also testified that on one occasion she "used the ladder in fun to look into the loft."
Erwin Spraul died before this suit was instituted. It did not appear that defendant had any means or estate of her own at the time of the accident, nor at what time the ladder was sawed off. The jury returned a verdict for plaintiff for $ 3,000, and defendant appeals.
This cause has been here once before, and is reported in 114 Mo. 551. The facts however were not as fully developed heretofore as at the present time.
(1) There was no evidence to warrant the court permitting the case to go to the jury...
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