78 S.W. 79 (Mo.App. 1903), Rogers v. Meyerson Printing Company

Citation:78 S.W. 79, 103 Mo.App. 683
Opinion Judge:GOODE, J.
Party Name:ROGERS et al., Respondents, v. MEYERSON PRINTING COMPANY, Appellant
Attorney:Kehr & Tittmann for appellant. Cunningham & Maurer for respondents.
Judge Panel:GOODE, J. Bland, P. J., and Reyburn, J., concur.
Case Date:December 15, 1903
Court:Court of Appeals of Missouri
 
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Page 79

78 S.W. 79 (Mo.App. 1903)

103 Mo.App. 683

ROGERS et al., Respondents,

v.

MEYERSON PRINTING COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 15, 1903

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.

GOODE, J. Bland, P. J., and Reyburn, J., concur.

OPINION

Page 80

[103 Mo.App. 686] GOODE, J.

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...

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