Fleischman v. Polar Wave Ice & Fuel Co.

• Decision Date: 19 April 1910
• Citation: 148 Mo. App. 117,127 S.W. 660
• Parties: FLEISCHMAN v. POLAR WAVE ICE & FUEL CO.
• Court: Missouri Court of Appeals

127 S.W. 660

148 Mo. App. 117

FLEISCHMAN v. POLAR WAVE ICE & FUEL CO.

St. Louis Court of Appeals. Missouri.

April 19, 1910.

1. MUNICIPAL CORPORATIONS (§ 706) — EVIDENCE — RES IPSA LOQUITUR — RUNAWAYS.

Negligence cannot be inferred merely from the fact that a team ran away and caused damage.

2. NEGLIGENCE (§ 121) — EVIDENCE — RES IPSA LOQUITUR — INFERENCES.

Negligence cannot be inferred as the cause of an accident from the facts of the occurrence, only when all other possible causes are excluded; but if the instrumentality doing the damage was under the management of a person, and the accident was such as does not happen in the ordinary course of events if the instrumentality is handled with due care, negligence may be inferred.

3. MUNICIPAL CORPORATIONS (§ 706) — USE OF STREETS — COLLISIONS BETWEEN VEHICLES — PERSONAL INJURIES — NEGLIGENCE — SUFFICIENCY OF EVIDENCE.

In an action for injuries to plaintiff, who, while walking on a city sidewalk, was struck by the tongue of a wagon, which was run into by defendant's wagon, evidence held to show prima facie defendant's negligence.

4. MUNICIPAL CORPORATIONS (§ 706) — USE OF STREETS — COLLISIONS BETWEEN VEHICLES — PERSONAL INJURIES — EVIDENCE.

Evidence held not to show that plaintiff, while walking on a city sidewalk, could not have been struck by the tongue of a stationary wagon run into by defendant's wagon.

5. MASTER AND SERVANT (§ 330) — INJURIES TO THIRD PERSON — RELATION OF PARTIES — EVIDENCE.

In an action for injuries to plaintiff, who, while walking on a city sidewalk, was struck by the tongue of a wagon which was run into by another wagon, evidence that defendant's name was on the latter wagon was competent to show that such wagon was in charge of defendant's servants, and that they were acting in the course of their employment at the time.

6. MASTER AND SERVANT (§ 330) — INJURIES TO THIRD PERSON — RELATION OF PARTIES — SUFFICIENCY OF EVIDENCE.

In an action for injuries to plaintiff, who, while walking on a city sidewalk, was struck by the tongue of a wagon which was run into by another wagon, evidence held to show prima facie that the latter wagon was owned by defendant and was in charge of its servants engaged at the time in defendant's service.

7. MASTER AND SERVANT (§ 332) — INJURIES TO THIRD PERSON — RELATION OF PARTIES — SCOPE OF EMPLOYMENT — INSTRUCTIONS.

In an action for personal injuries through the negligent driving of defendant's wagon, an instruction requiring the jury to find only that the wagon was in charge of defendant's servants, and omitting to require a finding that they were engaged at the time in the course of their employment, was erroneous; plaintiff's evidence on the latter point not being sufficient to permit more than inferences.

Appeal from St. Louis Circuit Court; Geo. H. Williams, Judge.

Action by Sarah Fleischman against the Polar Wave Ice & Fuel Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Watts, Williams & Dines, for appellant. Morrow & Kelley and Jos. Doyle, for respondent.

GOODE, J.

This plaintiff dwells on the east side of Eleventh street, between Wash street on the south and Carr street on the north; her residence being No. 1006 North Eleventh. Defendant, a corporation engaged in the ice and fuel business, maintains a yard and place of business at the corner of Eleventh and Wash streets and, we gather from the record, almost immediately opposite the home of plaintiff. The Moll Grocer Company has a stable for horses and teams at No. 1020 North Eleventh street, on the same side as plaintiff's residence and a few doors north. Plaintiff received an injury in front of the Moll stable about noon on January 21, 1908, and in this manner: A two-horse wagon belonging to the Moll Company stood in front of their stable near the curb with the tongue rigid and pointing northward. The horses had been unhitched and taken into the stable to be fed. Plaintiff started from her home to go to a butcher shop, walking north along the sidewalk on the east side of Eleventh street, and, while she was passing the wagon standing in front of the Moll stable, a wagon and team came along from the south in the street and the wagon was so driven that its wheels collided with the rear wheels of the Moll wagon and jostled the latter so violently its tongue was thrown around across the sidewalk and fastened under the door of the Moll stable. As the tongue swung around, it struck plaintiff in the right side, knocking her into unconsciousness, so she fell to the sidewalk and lay there until her father, who lived just across the street from the Moll stable and had witnessed the accident without knowing who was hurt, came across, discovered plaintiff lying there, and with the aid of another man carried her to his residence, where she was put to bed. Her injuries were serious, but need not be described, as there is no contention about their nature or complaint that the verdict is excessive.

The testimony tends to prove two negro men were in the wagon which collided with the stationary wagon, and the wagon was loaded either with manure or cinders. After the collision it was driven rapidly away to the north. It was a large yellow vehicle, without a top, with sideboards, with the words "Polar Wave Ice Company" painted on it, and was drawn by a team of gray horses. There is abundant evidence in the record to show it was like wagons in use by defendant company and kept in its yard in the vicinity. Plaintiff testified she had been taking ice from defendant for a long time and knew it used wagons like the one in question; further, that no one else used that kind of a wagon. Plaintiff's father testified he was standing in his door immediately opposite the Moll stable when he "heard some wagon give a great big knock against another wagon" and saw somebody fall. After the wagon passed he went over and was surprised to see his daughter lying on the sidewalk. As soon as she had been taken across into his store, he started to stop the drivers but they had gone. This witness testified he had lived in the neighborhood for eight years and knew defendant had many wagons like the one which collided with the Moll wagon. He testified further he saw the big yellow wagon trying to pull away from the stationary one after he heard the noise of the collision. Three men who were eating their dinner in the second story of the Moll stable testified they heard the collision, raised a window, looked out, and saw the wagon with defendant's name on it driving away; also heard the pole of the stationary wagon strike against the door of the stable, and when they went down found the pole wedged under the door so tightly it had to be pried out with a crowbar. These witnesses did not see a woman lying on the sidewalk, nor did they see one carried across the street by two men. However, one of them testified that when they got downstairs they could not get the door open and had to go around through the back door, and one testified he could not see the sidewalk from the window. One or two of these witnesses testified plaintiff's father came across the street while they were endeavoring to get the tongue from under the door, but said nothing about his daughter having been hurt. Another witness said he saw the father across the street in his store, but he did not come over to the Moll stable or that side of the street. A physician was put on the stand by defendant and testified about plaintiff's injuries, and it was admitted defendant had sent him to examine plaintiff a little more than a week after the accident, and without any proof being put in of whether or not she had made claim against defendant. At the instance of plaintiff, the court instructed the jury, in effect, that if they found plaintiff was walking north on the sidewalk on the east side of Eleventh street, and a wagon was standing at the time in said street near the sidewalk where plaintiff was walking, and further found one of defendant's servants and employés, in charge of and driving its wagon north on said street, negligently drove and ran the wagon into and against the wagon standing in the street, and thereby and by reason of said negligence caused the pole or tongue of the stationary wagon to strike plaintiff and injure her, they should find the issues for the plaintiff. The court further instructed as to the meaning of "ordinary care" and "measure of damages." Defendant requested no instructions, except one regarding the right of the jury to disregard the testimony of any witness they might believe had sworn falsely to a material fact, and another informing the jury they could not take into consideration the circumstances that the words "Polar Wave Ice Company" were on the wagon which collided with the Moll wagon, as proof of who owned the wagon bearing the words. The latter instruction was refused, and the record is silent as to whether the first one was given or not. The jury returned a verdict in favor of plaintiff for $3,500, and defendant appealed.

First, it is contended the court should have directed a verdict for defendant because there was no evidence tending to show the collision was due to the negligence of the persons in charge of the moving wagon. It is argued negligence cannot be inferred merely from the fact that one wagon collides with another in the street, and in support of this proposition many cases have been cited, but we think they are not in point. They either assert the general doctrine that the party alleging negligence must prove it, or, in so far as they are analogous to the present case, deal with accidents due to runaway teams or collisions where both vehicles were moving toward each other on a thoroughfare. Most decisions sustain the proposition that negligence cannot be inferred merely from the fact a team of horses ran away and caused damage, because runaways occur from the fright of horses when those in charge of them are not at fault...