85 Mo. 249 (Mo. 1884), Groll v. Tower

• Citation: 85 Mo. 249
• Opinion Judge: EWING, C.
• Party Name: GROLL, Appellant, v. TOWER.
• Attorney: Gottschalk & Bantz for appellant. Dyer, Lee & Ellis for respondent.
• Court: Supreme Court of Missouri

Page 249

85 Mo. 249 (Mo. 1884)

GROLL, Appellant,

v.

TOWER.

Supreme Court of Missouri.

October Term, 1884

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Gottschalk & Bantz for appellant.

(1) The court erred in excluding the testimony of the physician. The statute should not be construed as a prohibition upon the admission of such testimony under all circumstances. The statute does not create a privilege in favor of the physician; it was intended to secure the patient from disclosures by the physician. R. R. v. Martin, 41 Mich. 667; Scripps v. Foster, 41 Mich. 742; Staunton v. Parker, 19 Hun (N. Y.) 55. (2) The evidence made out a case of negligence. It was the duty of defendant to furnish proper and safe machinery, and he is bound to know of its defects. Porter v. R. R., 71 Mo. 66; Reber v. Tower, 11 Mo.App. 199; Dowling v. Allen, 74 Mo. 14. It was not the duty of Groll to inspect or know of the defects. Cases supra. (3) All inferences which may be drawn from the facts shown are to be construed in favor of plaintiff. Mauerman v. Siemerts, 71 Mo. 101; Buesching v. St. Louis Gas Light Company, 73 Mo. 219.

Dyer, Lee & Ellis for respondent.

(1) There is absolutely nothing in the testimony to fasten any liability upon the defendant for the injuries sustained by Groll, and especially is this so in view of the recitals in the petition concerning the manner in which the injury occurred. (2) The court committed no error in excluding the testimony of the attending physician. R. S., sec. 4017; Gartside v. Insurance Company, 76 Mo. 446; Linz v. Insurance Company, 8 Mo.App. 363.

EWING, C.

This is an action by the widow of Ed. Groll, deceased, for damages, for injuries sustained by Groll, from which he died, by reason of the negligence of the respondent in failing to provide safe and proper machinery. The petition alleges that Groll, while in the performance of his duties at respondent's soap factory, repaired certain pipes in a tank hereinafter described; that while ascending a ladder from the tank, a platform on which the ladder rested gave way, precipitating him to the bottom of the tank, from which fall he sustained injuries causing his death; that the platform gave way on account of its being constructed of improper material negligently built, and negligently allowed to become rotten and decayed and remain so. The answer of respondent admits that Groll was his employe at the time of the injury; the necessity of descending into the tank for repairs; the existence of the ladders and platform; that plaintiff is Groll's widow; also Groll's death on the day named in the petition, and alleges contributory negligence. The reply is a general denial.

On the trial in the circuit court, at the close of the plaintiff's evidence, on motion of defendant, the court sustained a demurrer to the evidence, and entered judgment for the defendant. Plaintiff...