Callahan v. Warne

• Decision Date: 31 March 1867
• Parties: ROSANNA CALLAHAN, Respondent, v. MARINUS W. WARNE, JOSHUA CHEEVER AND MORTIMER N. BURCHARD, Appellants.
• Court: Missouri Supreme Court

40 Mo. 131

ROSANNA CALLAHAN, Respondent,

v.MARINUS W. WARNE, JOSHUA CHEEVER AND MORTIMER N. BURCHARD, Appellants.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

Krum, Decker & Krum, for appellants.

I. The court below erred in refusing to give the first instruction asked by the defendants, namely, that upon the whole evidence the plaintiff was not entitled to recover.

This instruction was asked, at the close of the plaintiff's case, as in effect a demurrer to the evidence.

To make a prima facie case in this action, the plaintiff must have shown acts on the part of the defendants which led to the death of the plaintiff's husband, and that the latter could not have avoided his fate by exercising reasonable and ordinary care. The burden of proof was on the plaintiff--Lane v. Crombie, 12 Pick. 177.

Assuming that the defendants were guilty of negligence, if the evidence showed that the plaintiff's husband was also guilty of negligence, and that the mutual negligence was the proximate cause of the injury, the instruction asked should have been given--Trow v. Vt. Cent R. R., 24 Vt. 487; Williams v. Mich. Central R. R., 2 Mich. 259; Perkins v. Eastern R. R. et al., 29 Me., 307; Harrig v. N. Y. & Erie R. R. 13 Barb., 9; Rathburn v. Payne, 19 Wend. 399; Boland et ux. v. Mo R. R., 36 Mo. 484; Boswell v. Flagler, 5 Hill. 282; Williams v. Holland, 6 C. & P. 23.

Assuming that the defendants were negligent if the plaintiff's evidence showed that her husband failed to exercise ordinary care, the instruction asked should have been given--Hill v. Warren, 2 Stark., 377; Holt v. Wilkes, 3 B. & Ald. 304; Jordin v. Crump, 8 M. & W. 782; Flower v. Adam, 2 Taunt. 314; Mench v. Concord R. R., 29 N. H. 9; Mayer et al. v. Manntt, 9 Md. 160; Munger v. Tonawanda R. R., 4 Comst. 349; Birge v. Gardiner, 19 Conn. 507; Neal v. Gillett et al., 23 Conn. 437; Lane v. Crombie, 12 Pick. 177; Smith v. Smith, 2 Pick. 621; Parker v. Adams, 12 Met., 415; Bens v. Housatonic R. R., 19 Conn. 566; Harlow v. Henniston, 6 Cow. 189-91; Noyer v. Morristown, 1 Vt. 353.

The plaintiff's evidence was all in one direction, proving the carelessness of Callahan and the appellants' innocence. The case comes within the rule of Boland v. Mo. R. R., 36 Mo. 484, and the instruction should have been given--Harris v. Woods, 9 Mo. 112; Lee v. Davis, 11 Mo. 114; U. S. Bank v. Smith, 11 Wheat. 171.

II. The verdict of the jury should be set aside, because it is not supported by evidence.

Plaintiff's proof is merely circumstantial. The statute giving the remedy is essentially penal in its nature. Evidence introduced in an action under such a statute, and particularly circumstantial evidence, must be governed by the strictest rules controlling the admissibility of such evidence.

The verdict having been supported by no evidence, it should be set aside-- Heyneman v. Garneau, 33 Mo. 565; Morris v. Barnes' adm'r, 35 Mo. 412; Nelson v. Boland, 31 Mo. 432.Bakewell & Farish, for respondent.

I. The instructions refused were properly refused.

II. The instructions given correctly embodied the law of the case. (Dixon v. Bell, 5 Maule & S. 198; Townsend v. Wathen, 9 East. 277; Bird v. Holbrook, 4 Bing. 628; Ilott v. Wilkes, 3 B. & Ald. 304; Blackman v. Simmons, 3 Carr. & P. 138; Thomas v. Winchester, 2 Seld., N. Y., 407; Bush v. Brainard, 8 Cow. 78; Johnson v. Patterson, 14 Conn. 1.)

HOLMES, Judge, delivered the opinion of the court.

The plaintiff brings this suit under the provisions of the “Act concerning damages”--R. C., 1855, p. 647. The substance of the complaint was, that the defendants, carrying on the business of merchants in a general house-furnishing store in the building No. 125 North Fourth street, in the city of St. Louis, and whilst the plaintiff's husband was employed in repairing a sewer in the cellar of the building and was lawfully passing and repassing through the same in and about his business, negligently, carelessly and wrongfully placed three large jars in said cellar, two of them containing water and one containing a deadly liquid poison, which said jar of poison was of similar appearance to said jars containing drinking water, with no mark or notice to indicate its contents or warn persons that it contained poison, or that its contents were not the same as those of the two others placed beside it, and by reason of said gross negligence and carelessnes, and wrongful acts and default of the defendants, the plaintiff's husband, mistaking said poison for drinking water, then and there drank of the same, and was poisoned and immediately killed; and the plaintiff claimed damages to the amount of ten thousand dollars. (The statute limited the damages not to exceed five thousand dollars.) The answer denied that the deceased husband of the plaintiff was employed by the defendants, or was there by their permission, or that they negligently and carelessly placed the jar of poison in the cellar without marks indicative of poison, as alleged, or by reason of their negligence the deceased drank of the poison.

At the close of the plaintiff's evidence the defendants asked the court to instruct the jury that the plaintiff was not entitled to recover on the case made. This instruction was refused. It was of the nature of a demurrer to the evidence, and will first be considered.

The facts shown by the plaintiff's evidence may be stated thus: that defendants were merchants carrying on business in this store rented from the owners, and that these three jars, the smaller one containing liquid cyanate of potassium and the two larger ones containing water, were used in the business for the purpose of cleansing and polishing silverware, and were usually kept in the cellar; that the jar containing poison was marked poison, in letters legible enough for any one to read who should look for a label, and had a skull and cross-bones emblems on the corner; that the deceased was employed, not by defendants, but by a contractor under an agent of the proprietors of the building, who had charge of repairs, and that they were allowed to pass through the store down into the cellar, through a basement and into an area, where a sewer was undergoing repairs; that when the work on the sewer began in the front area of the cellar, where stood a hydrant with a cup for drinking, these large earthen jars were standing against the wall of the basement, not far from the hydrant, but were removed out of the way of the workmen, before the deceased came into the cellar, by a person connected with the store, and taken into the basement part of the cellar and placed among some goods piled up there, a few feet to one side of the passage leading through the basement to the stairs which ascended into the store above, and where a laborer, passing up and down about his business, would not be likely to notice them particularly, unless he went out of his way to examine them; that the deceased had been engaged at first in carrying brick from the street, through the store and down into the cellar, but afterwards passed the brick through a scuttle in the sidewalk, but, being again sent up through the store to get a hatchet, and while going on this errand, and when he had got about the distance of one square from the store, he was observed to fall down sick, suddenly overcome, and died in an hour, with all the symptoms of death by poison.

It is plain from the evidence, though not clearly shown by the petition, that the defendants and the deceased stood in no particular relation, or privity, with each other, but were in the simple position of strangers. The case, therefore, must be considered as falling under the principle of the general maxim, sic utere tuo ut alienum non lœdas. The cause of action is founded on alleged negligence of defendants, and the very gist of the action is, that the negligence of the defendants caused the accident and produced the injury. The burden of proof is on the plaintiff, and if there be no evidence sufficient in law to make a prima facie case on this issue, plaintiff cannot be entitled to recover.--Smith v. Hann. & St. Jo. R. R. Co., 37 Mo., 287; Boland v. Mo. R. R. Co., 36 Mo. 491.

It is to be observed, in the first place, that the evidence disproves a part of the allegations or assumptions of the petition. It not only fails to show that the deceased was employed by the defendants, or specially permitted by them to be there, or that he had any lawful occasion to meddle with those jars, or that the jars were placed in the cellar for any purpose of injuring trespassers or others, or were put where they were with any other reference whatever to the deceased than to place them out of the way of the workmen employed there, or that they were without visible marks indicative of poison, or that the deceased supposed the jars to contain water for drinking; but rather proves or tends to prove, the direct contrary of all this.

The question to be determined is, whether as a matter of law, admitting all the facts and circumstances to be true which are by this evidence shown to have existed, there was such proof before the jury as would warrant them in inferring the existence of the main fact in issue, namely, a negligence, on the part of the defendants, which caused the accident and produced the injury; and there is involved in this inquiry a subordinate question of law, namely, the existence of negligence or unskilfulness on the part of...