Dakan v. G. W. Chase & Son Mercantile Co.

• Decision Date: 19 June 1906
• Citation: 94 S.W. 944,197 Mo. 238
• Parties: ANNA MAY DAKAN v. G. W. CHASE & SON MERCANTILE COMPANY, Appellant
• Court: Missouri Supreme Court

94 S.W. 944

197 Mo. 238

ANNA MAY DAKAN v. G. W. CHASE & SON MERCANTILE COMPANY, Appellant

Supreme Court of Missouri, Division One

June 19, 1906

Appeal from Buchanan Circuit Court. -- Hon. A. D. Burnes, Judge.

Reversed and remanded.

Thos F. Ryan and Rusk & Stringfellow for appellant.

(1) The demurrer to the case made by the evidence should have been sustained, and it was error to refuse it. 1. The burden rested upon plaintiff to show that defendant had been guilty of negligence which caused the fire. No inference of negligence on the part of defendant can be drawn from the fact that a fire occurred and plaintiff was injured. Catron v. Nichols, 81 Mo. 80; Baldwin v Andrews, 96 N.W. 305; Dowell v. Guthrie, 116 Mo. 646; Smith v. Railroad, 37 Mo. 295; Fuchs v City, 167 Mo. 620. 2. The burden rested upon plaintiff, and to entitle her to recover she must prove, not only the negligence of defendant, but that the negligence so proven was the proximate cause of her injury. The causal connection must be proven between such negligence and such injury. Harper v. St. Louis Co., 187 Mo. 575; Turner v. Barr, 114 Mo. 347; Goransen v. Ritter Co., 186 Mo. 300; Harlan v. Railroad, 65 Mo. 22; Settle v. Railroad, 127 Mo. 341; Trigg v. Lumber Co., 187 Mo. 575; Sidway v. Land Co., 163 Mo. 375; Plefka v. Knapp-Stout Co., 145 Mo. 318; Reedy v. Reaping Co., 161 Mo. 536; Oglesby v. Railroad, 177 Mo. 301; Halman v. Railroad, 62 Mo. 562; Slagg v. Railroad, 169 Mo. 497; Breen v. Cooperage Co., 50 Mo.App. 214; Reed v. Railroad, 50 Mo.App. 506. 3. There was no evidence tending to show that the incandescent lamp caused the fire. The only defect in that lamp shown was that the key would not turn the electric current on to the lamp so as to light the lamp. (a) But it is said that a "short circuit" occurred in this lamp, and that caused the fire. Of this there is not a scintilla of proof. No fact or circumstance tending to show the existence of a "short circuit" was proven. It rests entirely on conjecture. It is a mere, a sheer speculation, restored to by astute counsel in an attempt to account for the origin of the fire. We challenge counsel to show any word in the testimony of any witness, or any fact or circumstances in the case, that has the slightest tendency to show the existence of a "short circuit" in that lamp. "Verdicts must have evidence to support them, and must not be founded on mere theory and supposition." Fetterling v. Railroad, 79 Mo. 509; Wood v. Railroad, 51 Wis. 201; Oglesby v. Railroad, 177 Mo. 295; Moore v. Railroad, 28 Mo.App. 627; Plefka v. Knapp-Stout Co., 145 Mo. 320; Dunleavy v. Iron Co., 85 N.W. 1025; Smith v. Railroad, 37 Mo. 295; Callahan v. Warne, 40 Mo. 136; Breen v. Cooperage Co., 50 Mo.App. 214; Reed v. Railroad, 50 Mo.App. 506. (b) Even had the existence of a "short circuit" been shown by the evidence, that would not have shown that the "short circuit" in this lamp caused the fire. In attempting in this way to account for the origin of the fire, counsel claimed that the "short circuit" heated the cord by which the lamp was suspended until it became red hot, and the red hot wire started the fire. The proof showed that each lamp has a "fuse;" that fuses are a means of precaution used by electricians to insure safety against "short circuits" or "an overload" of the wire; and that defendant's lamps were properly fused with five-ampere fuses. It was further shown that to heat the wires in the cord red hot would require a current so strong that it would "burn out" or "blow" a 25-ampere fuse. There was not a syllable of evidence tending to show that the fuse did not perform its proper office. If the fuse was blown, or "burned out," that would cut off the current, so that there could be no current in that lamp, and the lamp could not start a fire. 4. There was no evidence tending to show that it was possible for the servants of the defendant to notify the girls of the existence of the fire, in time to enable plaintiff to escape through the factory and consquently no evidence warranting the submission of this issue to the jury. 5. But it is claimed that defendant is liable because it failed to provide a fire escape for its servants. The court required plaintiff to elect whether she would go to trial on her common law or upon the statutory action, and plaintiff elected to stand on her common law action. (a) At common law no duty rested on the master to provide fire escapes for his servants. Jones v. Granite Mills, 126 Mass. 84; Keefe v. Granite Mills, 126 Mass. 90; Rose v. King, 49 Ohio St. 13; Huda v. Glucose Co., 154 N.Y. 474; Schmalzareck v. White, 97 Tenn. 41; Keeley v. Conner, 106 Pa.St. 321; Sewall v. Moore, 106 Pa. St. 570. All the master was required to do at common law was to provide stairways and doors and windows for their ready egress in case of fire. This the defendant had provided in the most ample manner. (b) Again, the proof showed beyond any controversy that defendant had complied with the statute, and furnished a fire escape such as that law required. This fire escape was located at the point selected by the building inspector of St. Joseph, was approved by him, by Nordmeyer, the state factory inspector, and by Armstrong, his deputy, and by the chief of the fire department of St. Joseph. It was on the east wall of the factory, and all the employees on second and third floors worked in the east end of the factory. If plaintiff was suing at common law, surely a fire escape suitable and sufficient to meet the requirements of the statute would satisfy the common law. Sewall v. Moore, 106 Pa. St. 570; Huda v. Gluscose Co., 154 N.Y. 474; Keeley v. Connor, 106 Pa.St. 321. 6. "The proper inquiry is not whether the accident might have been avoided if one charged with negligence had anticipated its occurrence, but whether, taking the circumstances as they then existed, he was negligent in failing to anticipate and provide against the occurrence. The duty imposed does not require the use of every possible precaution to avoid injury to the individual, nor any particular means which may appear after the accident would have avoided it. The requirement is only to use such reasonable precaution to prevent the accident as would have been adopted by prudent persons prior to the accident." Fuchs v. St. Louis, 167 Mo. 646. 7. The evidence showed that plaintiff had worked in this factory for several years prior to the time she was injured, and that she was thoroughly familiar with the buildings, the manner in which defendant conducted its business and the means provided by the defendant for the escape therefrom of its employees in the event of fire. Plaintiff having continued in the employment with full knowledge of all these facts, assumed the risks and dangers incident to the contingency that a fire might occur before working hours and at a time when she was in the dressing room. It was purely a possible contingency. This risk she assumed. Huda v. Glucose Co., 154 N.Y. 481; Bradley v. Railroad, 138 Mo. 293; Fulger v. Bothe, 117 Mo. 475; Holloran v. Foundry Co., 133 Mo. 470; Steinhauser v. Spraul, 127 Mo. 562. We do not contend that plaintiff assumed the risk imposed upon the defendant by law of providing for its servants a reasonably safe place under ordinary and normal conditions, but we do urge upon the court that this defendant was not required to anticipate and provide for extraordinary dangers and perils which might happen. Huda v. Gluscose Co., 154 N.Y. 481. (2) The court erred in admitting in evidence, over defendant's objection, the testimony of insurance agents to show that candy factories generally were classed as extra hazardous risks. Conner v. Railroad, 181 Mo. 418; Gobel v. Kansas City, 148 Mo. 470; Edwards v. Asphalt Co., 92 Mo.App. 281; Tomville Co. v. Weiss, 76 S.W. 356; Jewell v. Fitter Co., 200 Ill. 382; Van Ravensway v. Ins. Co., 89 Mo.App. 73.

James W. Boyd for respondent.

The case was tried properly and without any reversible or material error; the judgment is for the right party, and should be affirmed. (1) Appellant's point that a demurrer to the evidence should have been sustained is not supported by the facts or law. (2) Under the evidence the question of defendant's carelessness was, beyond all reasonable controversy, proper to be submitted to the jury. (3) The list of authorities cited by appellant on this subject may contain legal principles, as all law books do; but we submit that they are not in point on this issue in this case. (4) Thirty-one of those references might do duty in any brief in any suit at law on the part of any defendant who had appealed his case. (5) How defendant can hope to maintain its assertion that there was no evidence tending to show that the defective electric lamp caused the fire is beyond conjecture. The facts and circumstances shown in evidence tend to prove that it did. But even if there had been no proof of that fact, still this was a case for the jury on other grounds. (6) Respondent denies the correctness of appellant's assertions regarding the facts under this head. (7) There is no proof that the girls were the first to discover the fire, although appellant asserts they were. Its assertion is not sustained. (8) Plaintiff's case is meritorious. The verdict is small; less than it should be. The judgment is for the right party. There is no real defense, was none in the circuit court, is none here. (9) No error is ground of reversal unless it materially affected the merits of the action. R. S. 1899, sec. 865; McFarland v. Heim, 127 Mo. 327; Burns v. City, 131 Mo. 378.

VALLIANT J. Graves, J., not sitting.

OPINION

VALLIANT, J.

Defendant corporation at the times hereinafter mentioned was engaged in the business of manufacturing candy in the city of St Joseph; the plaintiff was...