Davidson v. Hennegin

• Decision Date: 09 September 1957
• Docket Number: No. 2,No. 46032,46032,2
• Parties: Ralph DAVIDSON, a minor, by his next friend, Laura Davidson, Appellant, v. Wayne HENNEGIN and Margaret Hennegin, Respondents
• Court: Missouri Supreme Court

Page 836

304 S.W.2d 836

Ralph DAVIDSON, a minor, by his next friend, Laura Davidson, Appellant, v. Wayne HENNEGIN and Margaret Hennegin, Respondents.

No. 46032.

Supreme Court of Missouri, Division No. 2.

Sept. 9, 1957.

Harold M. Hull, Frank H. Strong, Hull & Strong, Maryville, for appellant.

Gene Thompson, James P. Dalton, Maryville, for respondents.

BOHLING, Commissioner.

Ralph Davidson, by his next friend, Laura Davidson, appeals from a judgment entered upon sustaining a motion for a directed verdict at the close of plaintiff's case in an action against Wayne Hennegin and Margaret Hennegin for $10,000 damages for personal injuries.

Plaintiff's is the only testimony as to the facts of the occurrence. He is the nephew of Wayne and Margaret Hennegin, husband and wife, the defendants, his mother being Mr. Hennegin's sister. The Davidson and Hennegin families exchanged farm labor. Plaintiff was injured about 5:30 p. m., June 19, 1953. Plaintiff, his brother Allen, Charles Scott, Charles Frump, Marvin Lake, and defendants (Mr. and Mrs. Hennegin) were putting up loose clover hay in the loft of the Hennegin barn under the supervision of Mr. Hennegin. The barn is about 125 yards from the Hennegin house and is 30 or 35 feet east and west by 40 or 45 feet north and south in size. The hay door is on the east side of the barn. Plaintiff stated it was close to 20 feet to the bottom of the door. Mrs. Hennegin, on the west side of the barn and between it and the house, 'was driving the hay horses that day.' The team was hitched to the hay rope to pull up the hay fork. Plaintiff was 17 years old at the time of his injury. He had a high school education and had lived on a farm all of his life. His occupation was general farming. His father, Dale Davidson, operated a 300-acre farm; was 67 years old; had a heart condition; 'wasn't able to do any heavy farm work'; and the operation of the 300 acres was left principally to plaintiff, the only child living at home.

Plaintiff was operating a tractor, hauling the hay. Mr. Hennegin and Marvin Lake were in the loft placing the hay. The hay had been unloaded from plaintiff's wagon with the hay fork and, as usual, there was some hay on the ground. He cleaned the hay from the wagon. About that time 'a little shower came up.' Mrs. Hennegin came around to the east side of the barn and, talking to plaintiff, 'said she was going to the house to put down the windows, so I asked her if she would roll up the windows on my Dad's car.' Plaintiff then 'bunched up the hay,' got hold of the hay fork, and started pulling the carrier back. The track was a little uneven or rough, and when he got it back to the stop block it 'was going a little too fast, and I knocked the stop block off. The carrier went back to its normal place and dropped the pulley that the hay fork is on, and the hay fork came down to the ground.' They had to repair the track before they could finish putting up the hay. A ladder used for climbing up on the hay rack was on the ground and was needed in the barn to fix the track.

Plaintiff testified: 'Uncle Wayne wanted me to tie the rope to the ladder so that he could get the ladder in the barn and repair it, and I tied the rope through the ladder at this time, and I went out to get the clevis. It was laying there by----

'Q. (Interrupting) Did he say anything to you about the clevis at all? A. Well, he wanted me to hand the clevis up to him or throw it up to him.

'Q. What, specifically, if anything, did he say about the clevis? A. Well----

'Q. If you don't remember, just say you don't know. A. I don't remember.'

Plaintiff testified that after he tied the rope to the top rung of the ladder he 'set the ladder up against the barn and got the clevis'; that getting the clevis 'was a matter of a few seconds'; that he started up the ladder about four or five minutes after Mrs. Hennegin talked to him; that he 'got the clevis and started right up' the ladder, intending to 'throw' the clevis to Mr. Hennegin; that when he got up three or four rounds on the ladder it shot up into the air, hit the roof of the barn, and broke the top round of the ladder; that he fell off the ladder and landed on his left leg and his hips, and the ladder fell to the ground.

Plaintiff's injury resulted in his having what laymen know as a 'trick knee,' and later an operation was performed on the knee. He continued to work that afternoon for about an hour and a half longer, but had a great deal of pain.

Asked whether Mr. Hennegin 'could see you at all times,' plaintiff answered: 'Yes, Uncle Wayne and Marvin Lake was present, so they could see me at all times.'

Plaintiff testified Mr. Hennegin remained in the barn loft.

He did not know whether Mrs. Hennegin went to the house.

There were doors on each side of the barn. Plaintiff testified: 'Q. Could you see the team, whether it was attended or anyone was standing by it, from where you were standing? A. No, no'; and that the team had been there several years and a 'gentle farm team is what they were.'

Plaintiff's petition charged common law negligence; charging: (1) That defendants negligently directed, permitted and caused a seventeen year old farm boy to attach a ladder to a hay rope and to climb upon said ladder when so attached to said hay rope at a time when defendants knew, or should have known, that horses were hitched to the opposite end of said hay rope and were unattended; and (2) that defendants negligently failed to warn plaintiff that getting on said ladder was dangerous because said horses were attached to said hay rope and were unattended.

A plaintiff is entitled to the most favorable view of the probative evidence and all reasonable inferences therefrom in ruling a defendant's motion for a directed verdict. Lowry v. Mohn, Mo., 195 S.W.2d 652, 654; Hockaday v. Panhandle Eastern Pipe Line Co., Mo.App., 66 S.W.2d 956, 958. Plaintiff, however, must adduce substantial evidence. A mere scintilla of evidence is insufficient. Williams v. Kansas City So. R. Co., 257 Mo. 87, 116, 165 S.W. 788, 796, 52 L.R.A.,N.S., 443; Pietraschke v. Pollnow, Mo.App., 147 S.W.2d 167, 170. Forced and violent inferences should not be indulged. Williams v. Kansas City So. R. Co., supra, loc. cit. 112 and 794, respectively.

Plaintiff makes the point that negligence may be inferred against Mrs. Hennegin because she left a team of horses hitched to a hay rope unattended and untied in a little shower, citing 2 Am.Jur. 748, Sec. 73, and 759, Sec. 90; and Hockaday v. Panhandle Eastern Pipe Line Co., Mo.App., 66 S.W.2d 956, 959.

Plaintiff states that the jury might have known exactly what happened had defendants been given an opportunity to present testimony. Plaintiff had the burden of proving the specific negligence charged at the trial; and has the burden of establishing error upon his appeal. State to Use of Consolidated School Dist. No. 42 of Scott County v. Powell, 359 Mo. 321, 221 S.W.2d 508, 511; Ringeisen v. City of St. Louis, Mo.App., 238 S.W.2d 57, 64[4, 5]. It is presumed that a defendant exercised due care in the absence of substantial evidence establishing negligence. State ex rel. Missouri Public Utilities Co. v. Cox, 298 Mo. 427, 250 S.W. 551, 552.

There is no direct evidence that Mrs. Hennegin left the team unattended or untied. Plaintiff concedes this. Plaintiff's general statement that Mrs. Hennegin was 'driving that day' did not establish that someone else was not driving while she went to close the windows. Plaintiff says the little shower and the flies would make a gentle team seek shelter. He says that Mrs. Hennegin may have actually driven the team and caused the accident. Plaintiff has presented possibilities as to what might have happened to the team. Other possibilities of equal standing may as readily be drawn from the testimony. It might be said that the team was frightened and moved through no fault of anyone or through no fault of its driver, or was moved by one of the other persons assisting in putting up the hay, a fellow servant, under conditions imposing no liability on defendants.

In cases where the evidence tends to support equally either of several inconsistent inferences, some of which result in a failure of proof of defendant's actionable negligence, the factual issue or issues essential to plaintiff's case may not be said to be established by legitimate proof as plaintiff has failed to remove the case from the realm of speculation and conjecture. Grindstaff v. J. Goldberg & Sons S. S. Co., 328 Mo. 72, 80, 40 S.W.2d 702, 705; Panke v. Shannon, 357 Mo. 1195, 212 S.W.2d 792, 794; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31, 33; State ex rel. Dutcher v. Shelton, 249 Mo. 660, 696(III), 156 S.W. 955, 965; Pietraschke v. Pollnow, Mo.App., 147 S.W.2d 167, 170.

Plaintiff's case of Hockaday v. Panhandle Eastern Pipe Line Co., supra, was an action against the named defendant and its construction contractor. Someone, driving a truck, entered and left a feed lot in which some hogs were kept without closing the gate. The...