DeMaet v. Fidelity Storage, Packing & Moving Company

• Court: Missouri Court of Appeals
• Writing for the Court: EUGENE C. TITTMAN, S. J.
• Citation: DeMaet v. Fidelity Storage, Packing & Moving Company, 96 S.W. 1045, 121 Mo.App. 92 (Mo. App. 1906)
• Decision Date: 16 October 1906
• Parties: DeMAET, Respondent, v. FIDELITY STORAGE, PACKING & MOVING COMPANY, Appellant

96 S.W. 1045

121 Mo.App. 92

DeMAET, Respondent, v. FIDELITY STORAGE, PACKING & MOVING COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

October 16, 1906

Appeal from St. Louis City Circuit Court.--Hon. John W. McElhinney Judge.

REVERSED.

Judgment reversed.

Jeptha D. Howe, A. E. L. Gardner and Alphonso Howe for appellant.

John A Talty for respondent.

EUGENE C. TITTMAN, S. J. Bland, P. J., concurs. GOODE, J dissenting.

OPINION

EUGENE C. TITTMAN, S. J.

--After stating that defendant is a corporation, organized under the laws of this State, that Morgan street and Broadway were and are, open public thoroughfares in the city of St. Louis, that plaintiff was lawfully wedded to Predentia DeMaet, on April 5, 1887, and continued to live with her as her husband until the date of her death, the petition alleges:

"Plaintiff further states that on or about the 4th day of May, 1903, while plaintiff's said wife, Predentia DeMaet was walking in a southwardly direction across said Morgan street on, or near, the crossing on the west line of said Broadway, one, defendant's agent, servant and employee in charge of and driving its horse and buggy carelessly, negligently and unlawfully drove said horse and buggy against and upon said Predentia DeMaet, with such force as to throw her violently to the ground, causing a great and sudden shock to her nervous system, and cutting, bruising, wounding and seriously internally injuring the said Predentia DeMaet, causing her to become sick and sore and from the effect of which she finally on or about the 20th day of May, 1903, died.

"Plaintiff further states that Predentia DeMaet, was at all of said times in the exercise of ordinary care, and that her death was caused by defendant's said servant's negligent, careless and unlawful acts in driving said horse and buggy against and upon her and causing the said injuries as aforesaid."

Then follow allegations of damages and prayer for judgment.

The answer to the petition is as follows:

"Now comes the defendant, and, for its answer to plaintiff's petition herein, denies each and every allegation therein made and contained.

"Further answering, defendant says that if Predentia DeMaet sustained any injuries they were directly and proximately caused by her own carelessness and negligence, in that she carelessly and negligently walked into and against said horse without paying the slightest attention to where she was going.

"Further answering defendant says that the cause of the death of Predentia DeMaet was due to fat and enlarged thyroid gland and degeneration of the heart, liver and kidneys, and many other natural causes contributed thereto, and not as alleged.

"Wherefore, having fully answered, defendant asks to be hence discharged with its costs."

A reply was filed, denying the new matter in the answer.

A trial before a jury resulted in a verdict and judgment thereon, for the plaintiff, from which after an unsuccessful motion for a new trial, the defendant appealed to this court.

At the close of the plaintiff's case, the defendant offered an instruction in the nature of a demurrer to the evidence which was overruled. An instruction offered at the close of the whole case, to find for the defendant was likewise overruled.

Defendant having duly preserved the point, it becomes necessary to review the evidence taken as a whole. [Hilz v. Railroad, 101 Mo. 36, 13 S.W. 946; Weber v. Railroad, 100 Mo. 194, 12 S.W. 804, 13 S.W. 587; Hite v. Railroad, 130 Mo. l. c. 141, 31 S.W. 262, 32 S.W. 33.]

The evidence for the plaintiff tends to show that the deceased was forty-one years of age, and up to May 4, 1903, was apparently a strong, healthy woman, the mother of eight children (four living and four dead); that on May fourth she, with a basket on her arm, accompanied by her eleven-year-old daughter, stepped off the sidewalk on Morgan street, in the city of St. Louis, on to the pavement where Morgan street intersects Broadway, and was struck in the left side by the end of a buggy shaft, knocked down and injured; that she and her daughter were then taken into the buggy by the driver and driven south to Market street, where they took a street car and went to their home in South St. Louis.

The plaintiff testified that when he went home on May fourth, after his day's work was done, he found his wife in bed "wrong in her mind," unable to give any account of the accident; that she continued in this condition, and on May 16, 1903, he had her taken to St. Anthony's Hospital at Chippewa street and Grand avenue, where she died on May nineteenth, that before being sent to the hospital, she was treated for her injuries by Dr. Collasowitz.

Louis Margulis, the only witness in the case, who gave any testimony tending to show that the deceased was run into or struck by defendant's buggy, testified that at the time of the accident he was sitting on a trunk in the front of a store, across the street, on the north-east corner of Broadway and Morgan street, from which point, he saw the accident; that when deceased stepped out a few feet from the north curb on Morgan street, the buggy came around the corner going west on a full trot and the end of the right shaft of the buggy struck her on her left side, and she fell down on her hands and face "all crouched up," and the buggy had to be backed to get her out; that the buggy was a storm buggy, with all the curtains down except the front one and was coming from the north on Broadway at a brisk trot. This witness confessed that he signed the following statement:

"St. Louis, Mo., June 22, 1903.

"I, William Louis Margulis, state before Officer Dineen that I witnessed accident at northwest corner of Broadway and Morgan on May 4, 1903, at 11 or 11:15 A. M., and I witnessed buggy stop for street car going south on Broadway, then started west on Morgan. Saw lady run into front wheel of buggy and fall down, apparently by her own carelessness.

"LOUIS MARGULIS."

But in explanation, witness said he did not read the statement and signed it at the request of a police officer, for the protection of the officer. Two police officers present when he signed the statement, testified that he read it and knew its contents when he signed it.

Lawrence A. Steinberger testified that he did not see the accident, but heard the deceased scream and looked and saw her down under the wheel of the buggy; that the wheel was not on her, but she was down under the wheel, "doubled up, more on her right than on her left side, and with her face downward;" that the driver backed the buggy and she was assisted to her feet and into the buggy and she and her daughter were taken away by the driver.

Emma DeMaet, the daughter, testified that her mother was ahead of her and when they came to the corner of Morgan street and Broadway, as her mother was walking across the street, a buggy came along at a fast trot and knocked her down "by the wheel;" that some men picked her up and the driver took them to Market street, gave her mother a dime and they got on the street car and went home and her mother went to bed; that her mother did not talk to her at all on the way home. On cross-examination, witness stated that she did not see the buggy before it came in contact with her mother and could not tell whether her mother walked into the buggy, or the buggy ran into her; that she was looking at the fish market and the first she noticed her mother was down; that they were going to take a car and go home and were trying to catch a car that had just passed.

Edwin E. Goebel, the attorney who brought the suit but afterwards withdrew from it, testified that he sent for Charles F. Betts, president of the defendant company to come to his office, and in a conversation had there with Mr. Betts, the latter stated that Lawler (the driver of the buggy), was in the employ of the company on May 4, 1903, and had been up in North St. Louis on that day, taking orders and giving bids to people for the storage of their goods, and was on his way west on Morgan street when the accident happened, and that the horse and buggy belonged to the company.

Dr. Collasowitz testified that he attended the deceased professionally from the 4th to the 16th of May, 1903, when she was sent to the hospital after which he did not again see her; that although he tried several times to have his patient sit up, she was unable to do so, but felt faint; that she could not sit up and if she was not supported, she fell back on her pillow; that at times she seemed to be better and at times she was worse; her condition changing from day to day; that he visited her fourteen times; found no lesions on the body of the deceased--no evidence of external or internal physical injuries. He further testified that he did not know what caused the death of the deceased, but from the symptoms and from the statement of the injury received by her, he thought that she probably had hemorrhages of the brain, but could not give an opinion whether she died of shock or hemorrhages alone.

Charles F. Betts testified for defendant, that Goebel's testimony, in regard to the conversation with him at his office (Goebel's office) was wholly untrue, that Goebel called him to his office and tried to induce him to give him seventy-five dollars to drop the suit, but he told Goebel he would not give him fifteen cents; that he never heard of the accident until told of it by Goebel. Witness testified that while Lawler was hired by the company by the month, he was not at work for the company on May 4 1903; that there was a strike of the teamsters on at that time and the company was not doing any business; that Lawler was driving the horse and buggy on his own private business. Both the secretary of the company and...