Duffy v. McGee

Citation196 Mo. App. 395,195 S.W. 1053
Decision Date11 June 1917
Docket NumberNo. 12460.,12460.
PartiesDUFFY et al. v. McGEE.
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

Action by Charles Duffy and another against Charles A. McGee. From judgment for plaintiffs, defendant appeals. Affirmed.

E. H. Busiek and Paul R. Stinson, both of Kansas City, for appellant. Warner, Dean, McLeod & Langworthy, Randolph P. Rogers, and James P. Kem, all of Kansas City, for respondents.

ELLISON, P. J.

Plaintiffs' 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 3 and 4 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 6 feet high, 3 feet wide, and 1½ feet thick. It was leaned up lengthways 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 plaintiffs 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 backwards 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 6 feet high, 3 feet broad, and 18 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...

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17 cases
  • Tate v. Western Union Telegraph Co., 30035.
    • United States
    • United States State Supreme Court of Missouri
    • December 1, 1934
    ......Chandla v. Transit Co., 213 Mo. 244; MacDonald v. Railroad Co., 219 Mo. 468; Price v. Met. St. Ry. Co., 220 Mo. 454; Duffy v. McGee, 196 Mo. App. 395; Kean v. Smith-Reis Piano Co., 206 Mo. App. 174. (a) The fact that respondent offered some evidence tending to show ......
  • May Department Stores Co. v. Bell, 9453.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 12, 1932
    ......United Rys. Co. of St. Louis, 169 Mo. App. 284, 152 S. W. 621; Patterson v. Springfield Traction Co., 178 Mo. App. 250, 163 S. W. 955; Duffy v. McGee, 196 Mo. App. 395, 195 S. W. 1053; Kean v. Smith-Reis Piano Co., 206 Mo. App. 170, 227 S. W. 1091; Porter v. St. Joseph Ry., Light, Heat & ......
  • Tate v. Western Union Telegraph Co.
    • United States
    • United States State Supreme Court of Missouri
    • December 1, 1934
    ...... Chandla v. Transit Co., 213 Mo. 244; MacDonald v. Railroad Co., 219 Mo. 468;. Price v. Met. St. Ry. Co., 220 Mo. 454; Duffy v. McGee, 196 Mo.App. 395; Kean v. Smith-Reis Piano. Co., 206 Mo.App. 174. (a) The fact that respondent. offered some evidence tending to show ......
  • McCloskey v. Koplar
    • United States
    • United States State Supreme Court of Missouri
    • February 6, 1932
    ......579;. Sackewitz v. Biscuit Co., 78 Mo.App. 144;. Johnson v. Ry. Co., 104 Mo.App. 588; Scharff v. Const. Co., 115 Mo.App. 167; Duffy v. McGee, . 196 Mo.App. 395; Copithorne v. Hardy, 173 Mass. 400;. Garham v. Gross, 162 Mass. 331; Uggla v. Ry. Co., 160 Mass. 351; Duncan ......
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