Fishang v. Eyermann Contracting Co.

• Decision Date: 04 September 1933
• Docket Number: 31129
• Citation: 63 S.W.2d 30,333 Mo. 874
• Parties: Frank Fishang v. Eyermann Contracting Company, Appellant
• Court: Missouri Supreme Court

63 S.W.2d 30

333 Mo. 874

Frank Fishang v. Eyermann Contracting Company, Appellant

No. 31129

Supreme Court of Missouri

September 4, 1933

Appeal from Circuit Court of City of St. Louis; Hon. Wm. H Killoren, Judge.

Affirmed.

Wayne Ely and Tom Ely, Jr., for appellant.

(1) The court erred in admitting incompetent, irrelevant and and immaterial testimony on behalf of the plaintiff and over the objection and exception of the defendant at the time. Flintjer v. Kansas City, 204 S.W. 951; Normandine v. Kansas City, 206 S.W. 913; Paquin v. Railway, 90 Mo.App. 118; Morrow v. Railroad, 123 S.W. 1038; Hale v. Atkins, 256 S.W. 544; Bollinger v. Am. Asphalt Co., 19 S.W.2d 544; York v. Everton, 97 S.W. 604; Pryor v. Met. St Ry. Co., 85 Mo.App. 367; Hecht v. Repetto, 33 S.W.2d 1021; Chicago Coliseum Club v. Dempsey, 265 Ill.App. 542. (2) The court erred in excluding competent relevant and material evidence offered by this defendant, over the objection and exception of the defendant at the time. (a) The court erred in excluding testimony, and an offer of proof, which was to the effect that the conditions existing at this quarry were the same as the conditions at all other quarries, this in opposition to plaintiff's showing that said quarry lacked the usual safeguards. 2 Jones on Evidence (2 Ed.) 1275; Dalton v. St. Louis Smelting Co., 174 S.W. 468; Cassin v. Lusk, 210 S.W. 902; Schiller v. Kansas City Breweries Co., 137 S.W. 607; Dodd v. Independent Stove Co., 51 S.W.2d 114. (3) The court erred in refusing and overruling this defendant's instruction in the nature of a demurrer offered at the close of plaintiff's case, over the objection and exception of the defendant at the time. (a) The plaintiff was guilty of contributory negligence as a matter of law, and plaintiff's own negligence in recklessly driving over the embankment, when he knew of the conditions there and could have seen where he was driving and avoided the danger, directly contributed to and was the proximate cause of his injury. The question was for the court to decide and the demurrer should have been sustained. Main v. Lehman, 243 S.W. 91; Soloman v. Duncan, 185 S.W. 1143, 194 Mo.App. 517; Hamra v. Helm, 281 S.W. 103; Waldmann v. Skrainka Const. Co., 233 S.W. 246, 289 Mo. 622; O'Donnell v. Patton, 22 S.W. 903, 117 Mo. 13; Mullen v. Sensenbrenner Merc. Co., 260 S.W. 982; Cash v. Sonken-Galamaba Co., 17 S.W.2d 930. (b) Though the defendant might have been negligent in misdirecting the plaintiff, yet the injury would not have occurred, but for the negligence of the plaintiff, which contributed proximately thereto and recovery should not be allowed because the concurrent negligence operated proximately together. Plaintiff was well acquainted with the danger there, and where one knows and realizes the hazard, the defendant is not liable. Morris v. Kansas City L. & P. Co., 258 S.W. 431, 302 Mo. 475; Gray v. Union Elec. L. & P. Co., 282 S.W. 490. (c) Plaintiff was under the duty of exercising ordinary care in spite of the fact that there was a caretaker who undertook to guide him, and under the facts and circumstances of this case, he was guilty of contributory negligence as a matter of law. Beal v. Ry. Co., 285 S.W. 486; Henderson v. Ry. Co., 284 S.W. 790; Kentucky Wagon Co. v. Gossett, 135 S.W. 394; Slagel v. Nold Lumber Co., 122 S.W. 321, 138 Mo.App. 432; Penny v. Southeastern Express Co., 35 S.W.2d 940; Curtis v. Capital Stage Lines Co., 27 S.W.2d 747; State ex rel. Snyder v. Trimble, 262 S.W. 697. (4) The court erred in giving Instruction 5 on behalf of the plaintiff, over the objection and exception of the defendant at the time. (a) Instruction 5 allowed the jury to assess as part of plaintiff's damages such loss as plaintiff was shown to have incurred in the nature of loss of earnings from his ice business, during the time he was unable to work, and this was erroneous, because the evidence was not sufficient to sustain such a finding and verdict for loss of earnings, for the reason that the testimony on this question was speculative and was no more than a conclusion on the part of plaintiff's wife. Cases cited under Point 1. (5) The court erred in refusing Instruction D, offered by this defendant, and over the objection and exception of said defendant at the time. (a) The plaintiff failed to make a case for the jury under the assignment of negligence that defendant did not provide a bumping log at the edge of the quarry. The testimony concerning the bumping log, on pages 26, 30, 31, 33, 34, 39 76, 77 and 81, abstract of record, does not establish the fact that a bumping log was usually or customarily placed at the edge of quarries, or that it was necessary. There not being substantial evidence to support this assignment of negligence, the plaintiff was not entitled to rely upon it, and since the plaintiff did not request or give any instruction on the fact, the defendant was entitled to have the issue withdrawn from the consideration of the jury, and the refusal of the court to grant this instruction was reversible error. Latham v. Hosch, 233 S.W. 84, 207 Mo.App. 381; Lewis v. Am. Car & Foundry Co., 3 S.W.2d 285; Rosemann v. United Rys. Co., 194 S.W. 1088, 197 Mo.App. 337.

Henry Ebenhoh and George W. Johnson for respondent.

(1) Whenever items of business losses, or loss of profits can be ascertained with reasonable certainty, they may be allowed as damages. Hecht v. Repetto, 33 S.W.2d 1021; Ganz v. Met. St. Ry. Co., 220 S.W. 490; Meeker v. Light & Power Co., 216 S.W. 923; Sluder v. Transit Co., 88 S.W. 648; Gildersleeve v. Overstolz, 90 Mo.App. 518. (2) No error in refusing and overruling defendant's instruction in the nature of a demurrer offered at the close of plaintiff's case. Plaintiff was an invitee on the premises, had never dumped at the side of the quarry where the accident occurred before the accident, was not guilty of contributory negligence as a matter of law and could assume that part of defendant's premises to which he was invited to go were reasonably safe. Invitee had right to assume that defendant's premises were reasonably safe, especially that part of premises to which he was invited to go without any warning as to danger. Kennedy v. Phillips, 5 S.W.2d 33; Glaser v. Rothschild, 120 S.W. 2. Under the law no one is required to anticipate that another will be negligent. Shamp v. Lambers, 121 S.W. 770. Contributory negligence, to bar recovery, must enter into and form direct, producing and efficient cause of injury. Hires v. Retts Melick Grocery Co., 296 S.W. 408; Rooney v. Ry. Co., 286 S.W. 153; Nordmann v. Bakery Co., 289 S.W. 1037; Stack v. General Baking Co., 223 S.W. 89. Where reasonable minds may differ as to inferences from circumstances tending to prove contributory negligence, question is for jury. Northern v. Chesapeake & Gulf Fisheries Co., 8 S.W.2d 982; Compton v. Louis Rich Const. Co., 287 S.W. 474; Wilson v. Wells, 13 S.W.2d 541; Kennedy v. Phillips, 5 S.W.2d 33; Sharp v. Carthage, 5 S.W.2d 888; Lincoln v. Ry. Co., 7 S.W.2d 406; Marshall v. United Mountain Grove Creamery, Ice & Elec. Co., 275 S.W. 592; Thompson v. Energy Const. Co., 295 S.W. 524; Alexander v. Ry. Co., 4 S.W.2d 888; Lincoln v. Ry. Co., 7 S.W.2d 406; Marshall v. United Rys. Co., 184 S.W. 159; Osbourne v. Wells, 211 S.W. 887; Schulz v. Railroad Co., 223 S.W. 757; Minnis v. Lemp Brewing Co., 226 S.W. 999; Oney v. Dierks Lumber & Coal Co., 296 S.W. 472; Aleckson v. Ry. Co., 213 S.W. 894. Where plaintiff makes prima facie case, defendants have burden of overcoming it, and if prima facie case is once made out the case can never be peremptorily taken from the jury, since, however strong testimony of contributory negligence may be, its credibility and weight are for the jury. Cuccio v. Term. Railroad Assn., 203 S.W. 493. One may not be declared guilty of contributory negligence as a matter of law merely because of certain isolated statements indicating negligence, when his whole evidence tends to the contrary. Aleckson v. Ry. Co., 213 S.W. 894.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

This is an action for damages for personal injuries and damage to his truck sustained by plaintiff, respondent, when he backed his truck over the edge of and into defendant's quarry. The accident occurred November 14, 1927. The cause was tried June 16, 1930, thirty-one months thereafter, resulting in the following verdict:

"We, the jury in the above cause find in favor of the plaintiff on the issues herein joined and assess plaintiff's damages at the sum of eight thousand three hundred ninety-five 60/100 dollars.

"Carl C. Hudspeth, Foreman.

"As follows:

"Damage to truck

$ 208.60

"Medical attention

87.00

"Disability, thirty-one months at $ 100.00 a month

3100.00

"For physical injury

5000.00

$ 8395.60"

Judgment was entered on the verdict for the aggregate sum of $ 8395.60. If plaintiff is entitled to recover defendant does not challenge the first two items of the verdict. It contends that he was not entitled to recover at all, largely on the ground that the evidence conclusively shows that he was guilty of negligence which caused or contributed to his injury, and that in any event the evidence did not authorize recovery of the $ 3100 item.

Defendant a corporation, had charge and control of an abandoned quarry in St. Louis into which it allowed persons so desiring to dump cinders, dirt, ashes and rubbish for a stipulated sum per load. It kept an employee, one Gastreich, sometimes referred to in the evidence as caretaker, or dumpkeeper, in charge of the quarry. The cavity was variously estimated at from seventy-five to one hundred and fifty feet deep. From the edge to the bottom thereof the descent, though not vertical, was precipitous. Plaintiff had dumped ashes...