Berberet v. Elec. Park Amusement Co.

• Citation: 3 S.W.2d 1025
• Decision Date: 03 March 1928
• Docket Number: No. 27951.,27951.
• Parties: JENNIE BERBERET v. ELECTRIC PARK AMUSEMENT COMPANY, Appellant.
• Court: Missouri Supreme Court

3 S.W.2d 1025

JENNIE BERBERET v. ELECTRIC PARK AMUSEMENT COMPANY, Appellant.

No. 27951.

Supreme Court of Missouri, Division No. 1.

March 3, 1928.

Transferred from Kansas City Court of Appeals.

REVERSED.

Sebree, Jost & Sebree and Henry L. Jost for appellant.

(1) There was no evidence tending to show the condition of the walk at any time until after plaintiff's alleged injury, and none tending to show that such condition previously existed, or was known to, or could have been known to appellant. Hence appellant's requested instructions for a directed verdict should have been given. Nephler v. Woodard, 200 Mo. 189; Hunter v. Am. Brake Co., 231 S.W. 663; O'Toole v. South Island Park, 200 N.Y. Supp. 502; Wichita Traction Co. v. Adams, 183 S.W. (Tex.) 155; Taylor v. Terminal Ry., 240 S.W. 514; Eisenberg v. Mo. Pac. Ry., 33 Mo. App. 85; Bennett v. L. & N. Railroad, 102 U.S. 575; Buckley v. Kansas City, 156 Mo. 16; Mancke v. Basket & Box Co., 262 S.W. 1023. (2) The giving of modified Instruction A was error, because said instruction assumed that the loose board complained of was dangerous, and assumed also that the defective condition was known, or might have been known, to defendant, and is further erroneous because it covered the whole case and authorized a verdict for plaintiff without calling for any finding by the jury in respect to said two issues of fact. Young v. Kansas City, 45 Mo. App. 600; State ex rel. Long v. Ellison, 272 Mo. 571; Wojtylak v. Railroad Co., 188 Mo. 260; Hunter v. Am. Brake Co., 231 S.W. 664; Collins v. Central Railroad, 101 Atl. (N.J.) 287. (3) There was no evidence tending to show that respondent tripped and fell over the loose board in said walk, as alleged in her petition; hence appellant's demurrer to respondent's evidence, and again at the close of all of the evidence, should have been sustained. Trigg v. Ozark Land Co., 187 Mo. 277; Mullery v. Telephone Co., 180 Mo. App. 128; Powell v. Electrical Co., 195 Mo. App. 158; Galm v. Railroad, 113 Mo. App. 591; Graefe v. Transit Co., 224 Mo. 232; Caenefielt v. Bush, 198 Mo. App. 491. (4) The court erred in excluding appellant's counsel, Mr. Hill, from the court room, and thereby deprived appellant of the benefit of his services in the presentation of its defense, and in so doing denied to appellant its constitutional right to be represented by counsel under provisions of the State and Federal Constitutions, timely and specifically called to the court's attention. R.S. 1919, sec. 1154; Gregory Dry Goods Co. v. McMahon, 61 Mo. App. 505; 1 Thompson on Trials, sec. 290; Paul v. Railroad, 82 Mo. App. 504; 21 Ency. Pl. & Pr. 984, 985.

J.K. Cubbison, William G. Holt and Dumm & Cook for respondent.

LINDSAY, C.

This case, a suit for damages for personal injuries, is here for the second time upon the one appeal of defendant, taken from a judgment in favor of the plaintiff in the sum of $2500. The amount in controversy did not confer jurisdiction upon this court, and upon the first hearing we transferred the cause to the Kansas City Court of Appeals for the reason that no real constitutional question was raised or existed, giving this court jurisdiction. [310 Mo. 655, 276 S.W. 36.] Upon the hearing in the Court of Appeals the judgment was reversed and the cause remanded, upon the ground that there was error in the giving of plaintiff's Instruction A, purporting to cover the case and authorizing a verdict for the plaintiff. No other assignment of error was discussed. One of the judges dissented, and the cause has been certified to this court, the dissenting judge being of the opinion that the decision of the majority was contrary to certain previous decisions of this court.

The case is now here pursuant to the provisions of Section 6 of the Amendment of 1884 to the Constitution, and except as to the rulings heretofore made upon the alleged constitutional questions, is for consideration as if upon appeal in the first instance. [Keller v. Summers, 262 Mo. 324; Robertson v. Robertson, 270 Mo. 137; Hayes v. Sheffield Ice Co., 282 Mo. 446.]

At the time of the alleged injuries, the defendant owned and operated an amusement park in Kansas City. The plaintiff, a woman of about fifty-seven years, with her husband and her grandson, a boy of nine years, accompanied by a Mrs. Crawford, visited the park on the evening of July 30, 1921, paying the customary entrance fee. While in the park, they went to a merry-go-round. A board walk extended from the merry-go-round to a concrete walk. The boy rode in the merry-go-round; after which, the parties mentioned walked from the merry-go-round along this board walk, which inclined somewhat toward the concrete walk. When they were close to where the board walk joined upon the concrete walk, the plaintiff fell, sustaining the injuries for which she sued. The charge of the plaintiff in her petition, and in the evidence, was that defendant negligently permitted a board to be loose and unfastened; that plaintiff stepped upon such board; that it slipped, or gave way, causing her to fall and injuring her ankles, especially her left ankle. The petition, after preliminary averments, and statement that the approach or walk to said merry-go-round was constructed of wooden timbers, upon which wooden boards were placed, and inclined somewhat toward the concrete walk, alleged "that defendant had left near the bottom of said incline loose, unfastened and dangerous boards, which were liable to trip people going over same;" and, that, about 8:30 P.M., the plaintiff, while descending said approach, by reason of the unsafe and dangerous condition of said wooden approach, was tripped and thrown with great force, etc. The petition then makes the following allegations as to negligence: "Plaintiff further states that she received her injuries by reason of the careless and negligent acts of said defendant and its agents and servants in the failure of said defendant and its agents and servants to provide a safe approach to said merry-go-round, and said defendant was guilty of careless and negligent acts in permitting and leaving a board in said sidewalk in an unsafe and dangerous condition; plaintiff further alleges that said board which caused the plaintiff to fall was loose and unfastened and was liable to move and swerve when stepped on, and defendant was guilty of further negligence in leaving an opening in said board walk and that said board upon which the plaintiff tripped had become loose and unfastened at the south end thereof and was loose and unfastened at the time the plaintiff tripped and fell thereon."

When the case was called, the defendant objected to the impaneling of a jury, upon the ground that the petition was insufficient. The objection was overruled.

At the beginning of the trial, the rule was invoked as to the witnesses, and the court ruled, over defendant's objection, that Mr. John V. Hill, a witness for defendant, should be excluded from the court room during the taking of the testimony of the plaintiff, and error is assigned, upon the ground that Mr. Hill was one of defendant's attorneys. After the close of all the evidence, the court permitted the defendant to amend her petition. The amendment consisted in adding after the allegations of negligence, which we have above quoted, the words: "which condition could, by the exercise of ordinary care, have been discovered by defendant." These matters, the exclusion of Mr. Hill, and the allowance of the amendment to the petition, assigned as errors and violations of constitutional rights of defendant, are fully set forth and discussed in the former opinion. We held then, that these rulings by the court under the circumstances, fully set forth in the former opinion, raised no real and substantial constitutional question; and we hold now, under the facts and circumstances, shown in the former opinion, that the trial court was not guilty of an abuse of its discretion, and that reversible error was not committed in the exclusion of Mr. Hill, or in allowing the petition to be amended as was done.

The amendment to the petition was merely a statement in express terms of what was implied in the allegations, which preceded the amendment. The charge that defendant was guilty of careless and negligent acts in permitting and leaving a board in said sidewalk, which was loose and unfastened, and in an unsafe condition was equivalent to a charge that defendant knew, or in the exercise of ordinary care could have known, that the board was loose and in an unsafe condition. An allegation, or a finding, that a defendant negligently caused and permitted an unsafe, described condition, is equivalent to an allegation or a finding that the defendant knew the condition to exist. [Hall v. Mo. Pac. Railroad, 74 Mo. 298, 302; Morton v. Lloyd Construction Co., 280 Mo. 360-381; Johnson v. Railway, 96 Mo. 340; Crane v. Railroad, 87 Mo. 588; Young v. Iron Company, 103 Mo. 324; Midway National Bank v. Davis, 288 Mo. 563.]

Our former opinion fully sets forth the testimony for the defendant concerning the character of construction of the board walk, and the inspection and observation of the same by defendant's servants, which shows that, in fact, the averment contained in the amendment to the petition apprised the defendant of no new issue.

At the close of the whole case, the defendant offered certain peremptory instructions, requiring a finding for the defendant. Of these, we notice particularly defendant's offered Instruction C-A, which would have required a verdict for defendant upon the ground that there was no evidence tending to prove that defendant knew, or by the exercise of reasonable care and diligence, could have ascertained and known the existence of the alleged defect and condition in the inclined floor. This raised the serious question in the case, and requires a somewhat extended statement of the evidence.

The plaintiff described the circumstances under which she fell as...