Duffy v. McGee
| Decision Date | 11 June 1917 |
| Citation | 195 S.W. 1053,196 Mo.App. 395 |
| Parties | CHARLES DUFFY, et al, Respondent, v. CHARLES A. McGEE, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Harris Robinson, Judge.
Judgment affirmed.
E. H Busiek and Paul R. Stinson for appellant.
Warner Dean, McLeod & Langworthy, R. P. Rogers and James P. Kem for respondents.
Plaintiff's action is founded on the death of their small daughter, aged six years, which they charge to the negligence of defendant. They recovered judgment in the trial court.
Defendant is a merchant doing business on the north side of Independence avenue in Kansas City. Between three and four o'clock on the 9th of October, 1914, defendant had deposited on the sidewalk in front of his place of business, a heavy box filled with a "kitchen safe" or "cabinet." The box was about six feet high, three feet wide and one foot and a half thick. It was leaned up length ways against the front of the building. The foot of the box was placed so close to the building as to make its leaning insecure. Plaintiffs lived in the second story of the building in which defendant kept his store and two or three hours after the box was thus placed, the little girl was sent down the street on an errand to a grocery store. She came down the stairs, started west and in passing by the box it fell upon and killed her.
How the box came to fall just as she was in reach of it, is the question contested. Defendant insists that the evidence for plaintiff leaves the matter in such conjecture and doubt as to demand a reversal of the judgment. And that the evidence in his behalf shows that the child stopped as she was passing and in endeavoring to climb upon the box it toppled over on her. While plaintiffs contend that there was abundant evidence, coupled with the circumstances and inferences to be reasonably drawn therefrom, tending to show that the lean of the box against the building was so slight it was liable at any moment, on a jar, or vibration, to fall backward across the sidewalk.
The two points made against the judgment are that the verdict is contrary to the physical facts and natural law; and, second, that plaintiffs failed to show the death was caused by the negligence charged in the petition.
At the outset we will say that it is evident the jury thought defendant's witness was mistaken when he testified that he saw the little girl attempt to climb on the box. And we will therefore endeavor to ascertain what the evidence tended to show in behalf of the plaintiffs.
A witness who assisted defendant in unloading the box testified that "the bottom end of the box was so close to the building, it could turn over very easily." A man, with a companion, who had just passed by the store, observed the box which he stated to be about six feet high, three feet broad and eighteen inches thick leaning against the building. He stated that the box "was sitting very close to the store, but leaning back against the wall;" that the box "was not quite far enough from the building to really lean up there good, it was pretty close at the bottom." He noticed "a little child ran down the stairway" just as he was passing. She ran by him and he heard the box fall. He turned and saw the box lying down on the walk when he and his companion raised it off the child. He repeated that the child "passed right by me and just immediately after it (the child) passed I heard the box fall." We think it important to note at this place the further testimony that the child was lying face downward...
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