Betz v. Glaser

• Decision Date: 18 February 1964
• Docket Number: No. 31453,31453
• Citation: 375 S.W.2d 611
• Parties: Edward BETZ, (Plaintiff) Appellant, v. Jesse GLASER, Defendant) Respondent.
• Court: Missouri Court of Appeals

Page 611

375 S.W.2d 611

Edward BETZ, (Plaintiff) Appellant, v.Jesse GLASER, Defendant) Respondent.

No. 31453.

St. Louis Court of Appeals, Missouri.

Feb. 18, 1964.

Motion for Rehearing or for Transfer to Supreme Court Denied

March 12, 1964.

David G. Dempsey, Thomas B. Maue, Clayton, for appellant.

Luke, Cunliff, Wilson, Herr & Chavaux, by Paul Chavaux, St. Louis, for respondent.

WOLFE, Judge.

This is an action for damages arising out of personal injuries sustained by the plaintiff when he fell from a ladder while engaged in cutting a limb from a tree.He charged that he was caused to fall by the defendant going under the tree at the time the limb was about to fall, and that in attempting to grab the limb he lost his balance.There was a verdict for the plaintiff, but the court sustained the defendant's motion for a judgment in accordance with her prior motion for a directed verdict, and entered a judgment for the defendant.From the judgment so entered the plaintiff prosecutes this appeal.

All of the evidence, except for medical testimony with which we are not concerned, came from the plaintiff, who was the only witness called.On May 23, 1956, Edward Betz, the plaintiff, was a painting contractor.He was sixty years of age and resided on Lafayette Avenue in the City of St. Louis.Mr. and Mrs. Glaser lived across the street from his residence.They were friends of his, and he had been in their yard on occasions to show them how to cut the grass 'and so forth'.Mr. Glaser had asked him several times to cut some branches from a tree on a boundary of the Glaser property.On the date mentioned Betz took his own ladder across the street to the Glaser property, and with a saw supplied by Glaser he proceeded to cut branches from the tree.His ladder was firmly set.He was accustomed to working on ladders and had at times worked at considerable heights.He had done this for many years and had never fallen.

Mr. and Mrs. Glaser were in the yard watching the operation, and as he cut branches from the tree Mrs. Glaser would run under the tree and pick them up and carry them away.He stated that prior to the accident he had said to Mrs. Glaser, 'Get away from the tree, you'll get hurt.'He said that he told her that a 'couple of times'.Then he said, 'about two or three times,' which he later changed to 'dozens of times'.He said that prior to his fall he had cut from three to four limbs from the tree and had been at work for about ten minutes.Despite his warnings, Mrs. Glaser went under the tree to pick up branches that he had cut.He could have quit cutting the limbs from the tree, but he did not do so because the Glasers were good friends of his.

Just before the accident he was standing firmly on the ladder.He was about ten feet from the ground, and a branch that he was about to saw was waist-high to him as he stood on the ladder.The branch was ten feet long and three inches 'around' at the trunk.He saw Mrs. Glaser was in the yard away from the tree.Holding onto the ladder with his left hand and sawing with his right hand he started to saw the branch.As it was about severed and started to fall, he saw Mrs. Glaser standing beneath the tree under the branch.He released his hold on the ladder and attempted to grab the branch.He lost his balance and fell, and was seriously injured by reason of the fall.

The plaintiff submitted his case upon the rescue doctrine.He asserts that he acted upon seeing the defendant in peril from the falling limb, and that consequently he may recover for the injuries sustained in attempting to rescue her, regardless of his own negligence in so doing.

In Dulley v. Berkley, 304 S.W.2d 878, l. c. 883, our Supreme Court cited with approval the following from 38 American Jurisprudence, Negligence, Sec. 228, p. 912:

'The rule is well settled that one who sees a person in imminent and serious peril caused by the negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own life or serious injury in attemping to effect a rescue, provided the attempt is not recklessly or rashly made.In other words, in attempting to save the life of another, one is justified in exposing himself to danger in a manner that under other circumstances would deprive him of legal redress for injuries sustained.'(Emphasis ours.)

As stated in Dulley v. Berkley, supra, the basic theory of the rescue doctrine is that the negligence or wrong that imperiled life is not only a wrong to the imperiled victim, but also a wrong to his rescuer.

We have been cited to no Missouri cases, nor have we found any, where the rescuer sues the party rescued.The case closest in point to the facts before us is Saylor v. Parsons et al., 122 Iowa 679, 98 N.W. 500, 64 L.R.A. 542.This case involved two workmen who were engaged in removing a wall in order to build an extension to a building.The defendant was negligently undermining the wall, and the plaintiff noticed that it was listing toward his fellow worker.Believing the fellow worker to be in imminent danger he seized a piece of scantling and braced it against the wall about two feet from the top.His fellow worker escaped without injury, but the brick against which the plaintiff placed the prop gave way, and the plaintiff fell forward and was caught by the falling wall, suffering injuries.The court held that the plaintiff made no case.It stated that a plaintiff who grounds his action upon the negligence of the defendant must show, not only that the conduct of the defendant was negligent, but also that it was a violation of some duty the defendant owed to him.

This case is noted in Am.Jur., Sec. 229, p. 914, and it sums up the holding by saying that according to this authority, 'a person who places himself in peril is not guilty of negligence toward another which entitles the latter to recover for injury suffered in attempting to rescue him from his peril.'

There is some authority to the contrary in Brugh v. Bigelow, 310 Mich. 74, 16 N.W.2d 668, 158 A.L.R. 184.In that casethe plaintiff was injured in attempting to rescue a person...