Fleishman v. Polar Wave Ice and Fuel Company
| Decision Date | 19 April 1910 |
| Citation | 127 S.W. 660,148 Mo.App. 117 |
| Parties | SARAH FLEISHMAN, Respondent, v. POLAR WAVE ICE AND FUEL COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Robert M. Foster Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Watts Williams & Dines and Wm. R. Gentry for appellant.
(1) The demurrer to the evidence should have been sustained: (a) Because there was no evidence whatever of any negligence on the part of the defendant, or anybody else, contributing to the plaintiff's alleged injuries. The doctrine of res ipsa loquitur does not apply here; negligence cannot be inferred from the mere striking of one wagon by the other. Some negligent act on the part of defendant must be proven. Schmidt v. Harkness, 3 Mo.App. 585; Cotton v Wood, 8 C. B. (N. S.) 568; Same case, Thompson on Neg. (1 Ed.), p. 364; Lane v. Crombie, 12 Pick. (Mass.) 415; Same case, Thompson on Neg. (1 Ed.), p. 376; Schmidt v. Railroad, 149 Mo. 269; Dowell v. Guthrie, 99 Mo. 653; Bigelow v. Reid, 51 Me. 325; Lane v. Crombie, 29 Mass. 177; Lee v. Jones, 181 Mo. 291; Waters v. Wing, 59 Pa. (9 P. F. Smith) 211; Herschberger v. Lynch, 11 A. 642; Parsons v. Yeager Milling Co., 7 Mo.App. 594; O'Malley v. Railroad, 113 Mo. 320; Garlick v. Dorsey, 48 A. 220; O'Brien v. Miller, 60 Conn. 214; Bennett v. Ford, 47 Ind. 264; Shawhan v. Clarke, 24 La. 390; Broult v. Hanson, 158 Mass. 17; Kenney v. Way, Brightly, N. P. 186; Britton v. Frick, 51 Conn. 342; Gray v. Thompson, 15 N.Y.S. 453; Goransson v. Mfg. Co., 186 Mo. 300; Epperson v. Telegraph Co., 155 Mo. 346. (b) The demurrer to the evidence should have been sustained because there was no evidence offered by plaintiff proving, or tending to prove, that the wagon designated by her as the "Polar Wave" wagon was operated by the defendant, through a servant acting in the line of his employment as a servant of the defendant. Without such proof the plaintiff's case ought not to have gone to the jury. Frisby v. Transit Co., 113 S.W. 1059 and cases cited; Evans v. Automobile Co., 121 Mo.App. 266; Cousins v. Railroad, 66 Mo. 576; Brenner v. Ford, 116 La. 550; Fiske v. Enders, 73 Conn. 338; Fish v. Coolidge, 47 A.D. 149; McCartney v. Timmins, 178 Mass. 378; Thorp v. Miner, 109 N.C. 152; Goodman v. Kennell, 3 Cor. & P. 168; Reaume v. Newcomb, 124 Mich. 137; Perlstein v. Am. Exp. Co., 177 Mass. 530; Stone v. Hill, 45 Conn. 44; Patterson v. Kates, 152 F. 481; Slater v. Adv. Thresher Co., 97 Minn. 305; Lotz v. Hanlon (Pa.), 66 A. 525; McMullen v. Hoyt, 2 Daily at p. 277. (c) The demurrer to the evidence should have been sustained because the plaintiff's account of the manner in which she was injured was so absolutely contrary to physical facts that it was not sufficient to entitle her to have her case submitted to the jury. When that is true, the case should be taken from the jury. DeMaett v. Fidelity & Casualty Co., 121 Mo.App. 92; Schaub v. Railroad, 113 S.W. 1163. (2) The court erred in admitting evidence as to the wording on the wagon which struck Moll Grocery Company's wagon. This evidence was purely hearsay and did not tend to establish the operation of the wagon. (3) The court erred in giving instruction numbered 1, at the request of the plaintiff, because said instruction permits the plaintiff to recover regardless of whether the man driving the wagon was acting in the line of his duty for the defendant or not.
J. F. Coyle and Morrow & Kelley for respondent.
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 moving 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 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 prized 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 down stairs 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 then 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 employees 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 circumstance 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 three thousand, five hundred dollars 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...
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