Clark v. Famous Shoe & Clothing Co.

• Decision Date: 24 February 1885
• Citation: 16 Mo.App. 463
• Parties: CHARLES A. CLARK ET AL., Respondents, v. FAMOUS SHOE AND CLOTHING COMPANY, Appellant.
• Court: Missouri Court of Appeals

16 Mo.App. 463

CHARLES A. CLARK ET AL., Respondents,

v.FAMOUS SHOE AND CLOTHING COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 24, 1885.

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Affirmed.

H. D. LAUGHLIN and A. BINSWANGER for the appellant: The burden of showing negligence is on the plaintiff.-- Curran v. Warner, 36 N. Y. 153; Sher. & Redf. on Neg., sect. 12, p. 14; 2 Thompson on Neg. 1175. When the negligence of the plaintiff is disclosed by his own testimony he can not recover.-- Henry v. Railroad Co., 76 Mo. 288; Nolan v. Shickle, 69 Mo. 340,affirming3 Mo. App. 300; O'Donnell v. Railroad Mo., 7 Mo. App. 190. This law imposed no obligation on the defendant to station a watchman at the door to prevent its being opened.-- Harrison v. Collins, 86 Pa. St. 153. The misconduct of a juror in this case was ground for a new trial.-- Bowen v. Washington, 62 Mo. 302.

ROWE & MORRIS, for the respondent: It is well established that a juror can not, by affidavit or otherwise (personally), be heard to accuse himself of misconduct or otherwise to impeach his verdict.-- The State v. Diekman, 11 Mo. App. 545; The State v. Branstetter, 65 Mo. 149; The State v. Alexander, 66 Mo. 148 The burden of showing contributory negligence is on the defendant.-- Clifford v. Dam, 81 N. Y. 52; Irvine v. Wood, 51 N. Y. 224; Hanlon v. Keokuk, 7 Iowa, 488; Buschong v. Gas-Light Co., 73 Mo. 220. Though the plaintiff was guilty of some negligence, which remotely contributed to the injury, yet, if the defendant, by the exercise of ordinary care and prudence, could have prevented it, he is liable.-- Burnham v. St. Louis and Iron Mountain Railway Co., 56 Mo. 338; Walsh v. M. T. Co., 52 Mo. 484; Smith v. Union Railroad Co., 61 Mo. 588.

ROMBAUER, J., delivered the opinion of the court.

A careful examination of the record in this cause discloses no errors which would justify us in vacating the judgment rendered by the court below.

It is an action by husband and wife to recover damages for personal injuries received by the wife. There was testimony tending to show that the cause of the accident, resulting in the injury complained of, was defendant's negligence, in permitting a hatchway to remain open on one of the public sidewalks in the city, adjoining defendant's premises. The hatchway was properly constructed, and the plaintiff wife fell into it while endeavoring to protect one of her children, a girl four years old, who had slipped on the sidewalk, and had fallen in front of the open hatchway. The sidewalk was about thirteen feet wide, and half of its width was occupied by this opening. The testimony was undisputed that when both doors of the hatchway were open they rested at an obtuse angle, on fixed stands, obstructing the sidewalk for one-half of its width, so that it was next to impossible for any passer-by to fall into the hatchway, except from that part of the sidewalk immediately in front of it, between the opening and the curb of the street.

The jury found a verdict for the plaintiffs, and assessed their damages at $2,500. The injuries received were of a serious character, and probably permanent in their effect. The verdict was reduced by the plaintiffs, on suggestion of the trial court, by remittitur to $1,700, and judgment was rendered in their favor for the latter amount.

The errors complained of by defendant in this court are: The refusal of the court below to non-suit the plaintiffs at the close of plaintiffs' case, and at the close of the entire testimony, upon instructions asked by the defendant in the nature of demurrers to the evidence, as well as giving other erroneous instructions to the jury, at its own motion, and refusing those asked by the defendant. The defendant also claims that the court should have set aside the verdict, on account of the misconduct of one of the jurors.

The defendant claims that its demurrer to the evidence at the close of the plaintiffs' case should have been sustained, because it appeared by the plaintiffs' testimony that she was guilty of contributory negligence.

Under the rule prevailing in this state it is not necessary for the plaintiff in actions of this character either to aver or prove that he was not guilty of negligence. Thompson v. Railroad Co., 51 Mo. 192; Loyd v. Railroad Co., 53 Mo. 512. But if the fact clearly appears by testimony offered on plaintiff's behalf that he was guilty of negligence, which directly contributed to the accident complained of, he can not recover, and the court should so instruct the jury. Nolan v. Shickle, 69 Mo. 340, and cases cited. The statement of this rule is very simple, but its application to particular facts is often very difficult. “There is no absolute rule as to negligence to cover all cases, that which is negligence in one case will become by change of circumstances ordinary care in another case, and gross negligence in a third,” says Judge Wagner, in Brown v. Railroad Co. (50 Mo. 467). If plaintiff, walking along this sidewalk alone, had by inadvertence fallen in to this opening, it might, perhaps, have been conclusive proof of negligence on her part. Yet who can justly say, that because in her anxiety for her little child, who was or whom she deemed to be in immediate danger, she went one step too far, or slipped, or disregarded those precautions which under other circumstances she might or ought to have taken, she was guilty of such negligence as to debar her of all redress.

In Loyd v. Railroad Company ( supra), where the same point was made under similar circumstances, Judge Napton, in overruling the point, said: “Whilst it may be law that a passenger who...