Rogers v. Meyerson Printing Company
| Citation | 78 S.W. 79,103 Mo.App. 683 |
| Parties | ROGERS et al., Respondents, v. MEYERSON PRINTING COMPANY, Appellant |
| Decision Date | 15 December 1903 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis City Circuit Court.--Hon. J. R. Kinealy Judge.
Judgment affirmed.
Kehr & Tittmann for appellant.
(1) Having offered an instruction of nonsuit at the close of plaintiffs' case, which the court refused to give, and having offered a peremptory instruction to find for defendant at the close of the case, and having duly preserved the point, we are entitled to a review by the court of the whole evidence in the case. Hilz v. Railroad, 101 Mo. 36; Weber v. Railroad, 100 Mo. 194; Hite v Railroad, 130 Mo. 132; Fuchs v. City of St Louis, 167 Mo. 631. (2) The petition alleges that "while said Walter Rogers was on his way back, coming down said stairway, in obedience to his orders and directions as aforesaid, said Walter Rogers fell down said stairway and upon said landing, and without any fault or negligence on his own part was precipitated through said window and fell to the street, about forty feet below said window, and was thereby fatally injured, etc." There is not even a scintilla of proof to support this allegations of plaintiffs' petition. The allegations of plaintiffs' cause of action were unproved in their entire scope and meaning. There was, therefore, a failure of proof. R. S. 1899, secs. 286 and 798. (3) The record shows that the verdict of the jury and the consequent judgment thereon, are contradictory of and in opposition to conceded and undisputed physical facts, as developed by plaintiffs' evidence, and should, therefore, not be permitted to stand. Payne v. Railroad, 136 Mo. 562; Nugent v. Kauffman Milling Co., 131 Mo. 241; Weltmer v. Bishop, 171 Mo. 110. (4) The evidence in this case shows that the injury to the deceased resulted from one of two causes, for neither of which defendant is liable. But, assuming that defendant would be liable for one of them, yet the plaintiffs must show, not by conjecture, but by a reasonable inference and with reasonable certainty, that the cause for which defendant is liable actually produced the result; if the evidence leaves it to conjecture merely the plaintiffs must fail. Smart v. Kansas City, 91 Mo.App. 586; Sarles v. Railroad, 101 N.Y. 661; Bond v. Smith, 113 N.Y. 378; Pauley v. Steam Co., 131 N.Y. 90; Linklauf v. Lombard, 137 N.Y. 417. (5) No one is liable for the consequences of an inevitable accident. It is not negligence not to take precautionary measures to prevent an injury which, if taken, would have prevented it, when the injury could not have been reasonably anticipated and would not, except under exceptional circumstances, have happened. If the accident was possible, yet, according to ordinary and usual experience, not probable, it is not negligence not to take precautionary steps against it. Lawless v. Gas Light Co., 72 Mo.App. 679; Brewing Co. v. Talbot, 141 Mo. 683; Glover v. Bolt & Nut Co., 153 Mo. 327; Sjogren v. Hall et al., 53 Mich. 274; Nelson v. Railroad, 30 Minn. 74; Dougan v. Champlain Co., 56 N.Y. 1; Loftus v. Union Ferry Co., 84 N.Y. 455; Lafflin v. Railroad, 106 N.Y. 136; Dwyer v. Hills Bros., 79 A.D. 45. (6) All the physical and undisputed facts show that the death of Walter Rogers was due to his own contributory negligence. Defendant's negligence, if any, is therefore immaterial. Hudson v. Railroad, 123 Mo. 445; Hogan v. Railway, 150 Mo. 55.
Cunningham & Maurer for respondents.
(1) The defendant's demurrer was properly overruled. Buesching v. Gas Light Co., 73 Mo. 219, 231, 233; Wilson v. Board of Education, 63 Mo. 137; Drain v. Railroad, 86 Mo. 574; Petty v. Railroad, 88 Mo. 306; Keim v. Railroad, 90 Mo. 314; Craney v. St. Louis, 141 Mo. 180. (2) The defendant was guilty of negligence in failing to guard the window, especially after the danger became apparent, and under the evidence and pleadings the court was bound to submit the cause to the jury. Bullmaster v. St. Joseph, 70 Mo.App. 60; Keim v. Railroad, 90 Mo. 314; Fernandes v. Railroad, 52 Cal. 45; Gay v. Winter, 34 Cal. 153; Hoyt v. City of Hudson, 41 Wis. 105; Curtis v. McNair, 73 S.W. 167.
Respondents' son, Walter Rogers, was killed while performing his duty as an employee of the appellant company and this action was brought by the parents for the damages sustained by his death, which is ascribed in the petition to negligence on the part of the appellant. The fatal accident was of a singular kind, as will appear from a statement of the facts, so far as they are known. The printing company did business in a four-story building on the southwest corner of Third and Vine streets in the city of St. Louis. Between the third and fourth stories, on the north side of the building, were two flights of stairs of ten steps each, the lower flight rising from the third story to a platform or landing midway between the two stories and the other flight rising to the fourth story. The steps were wide enough and of low height. On the right hand in ascending, left hand in descending, was a banister. It curved at the platform on an arc whose chord was nine inches. The landing platform between the two stories was, as we gather, about seven feet wide and more than eight feet long. A window in the north wall of the building occupied the middle space of that part of the wall across which the platform extended. This window was a little over four feet wide and each sash (the upper and lower) had two panes of glass in it about two feet wide. Only two feet and seven inches of the window projected above the platform, the other eight feet extending below. The window was arched at the top and the arch was, of course, narrower toward its center than at the sides. The banister running from the fourth story to the landing would, if prolonged, have struck the window just four inches east of the center. The center of the window coincided with the center line of the curve of the banister at the landing, which curve, as stated, was nine inches across; that is, a line prolonged from the center of the curve would strike exactly in the center of the mullion of the window; and as the chord of the curve was nine inches long, the upper banister would thereby be thrown a little over four inches east of the mullion.
During the afternoon of May 16, 1901, Walter Rogers, then a lad thirteen years old, was sent to the fourth story of the building and after dispatching his errand, started to return to the third story. When next seen he was in the air outside the building, having fallen through the east pane of the window at the landing, whence he dropped into the middle of Vine street and was killed. He was seen in his descent by a workman engaged in a building across the street. The negligence charged against the defendant was failing to guard and protect the window above the stair landing, which is alleged to have been dangerous in its unguarded state.
One position assumed by the appellant is that the boy Walter lost his hold while sliding down the rail of the banister, slipped off and plunged through the window at the foot. On this assumption he is said to have caused his death by his own negligence. There is testimony that he and other boys who worked on the premises were in the habit of half sitting half lying on the railing with their heads leaned slightly outside of it and their feet inside and sliding down, and that they had been warned against the prank. There is no positive and very slight circumstantial evidence that at the time Walter was killed he slid down the banister. A mark was found on the platform, beginning a few inches from the window and running to the edge of the platform, which was thought to have been scraped by the boy's heel, and to show he had slipped off the banister; but the inference could as well be drawn that he had slipped from the stairs to the landing and made the mark. An argument designed to show that the physical facts demonstrate the boy slipped from the banister through the window, is addressed to us by appellant's counsel; but while the reasoning is satisfactory on the proposition that the accident could have happened that way, it falls short of demonstrating that it must. Until evidence was in which bore on the question, the presumption obtained that the deceased was careful instead of negligent; and it was for the appellant to overcome that presumption by positive or circumstantial evidence proving him to have been careless. The issue was referred to the jury in all the instructions, and they must have found the boy was free from negligence. Appellant's counsel contend the court erred in advising the jury that the deceased was bound to exercise only such care and prudence as reasonably might be expected of a boy of his age and capacity in the same circumstances, and that the law does not require as high care from a person of tender years and imperfect discretion as from one of mature years and discretion. The court's charge was in harmony with the prevalent rule of law in this State in regard to the negligence of children. Donoho v. Iron Works, 7 Mo.App. 447, 75 Mo. 401; Schmitz v. Railroad, 119 Mo. 256; Van Natta v. Railway, 133 Mo. 13. Appellant's counsel argue as if the fact that the boy slid down the banister conclusively established negligence on his part, and the lower court adopted that theory and gave an instruction which directed the jury to return a verdict for the appellant if they found the deceased was killed by slipping from the rail and dashing through the window. Appellant surely got all it was entitled to in that charge on the particular point we are dealing with, and has no room for complaint. In view of our decision that the...
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