Geisel v. Haintl

Citation427 S.W.2d 525
Decision Date13 May 1968
Docket NumberNo. 52775,No. 1,52775,1
PartiesElsie K. GEISEL, Appellant, v. Russell HAINTL, Respondent
CourtUnited States State Supreme Court of Missouri

Burton H. Shostak, Hoffman & Shostak, St. Louis, for appellant.

Heneghan & Roberts, Robert G. Burridge, St. Louis, for respondent.

SEILER, Judge.

The jury found for the defendant in plaintiff's $17,500 damage suit and she appeals. Her first amended petition charged that in descending a short fight of outside steps at defendant's residence she lost her balance and fell because of a wobbly handrail which defendant maintained in an insecure condition without warning to plaintiff. Plaintiff submitted her case to the jury by an instruction requiring, among other things, findings that 'there was an insecure handrail on the steps of defendant's porch and as a result the handrail was not reasonably safe for persons walking down side steps' and that 'defendant either failed to use ordinary care to remedy it or to warn of it'.

The point presented by plaintiff on appeal is that the trial court committed prejudicial error and abused its discretion in permitting the jurors to pull on a small hand scale which had been introduced in evidence (plaintiff's brief refers to the scale as 'the type on would find in a fishing box'), so as to see 'how much pounds twenty-five is'. The evidence which bears on this point is follows:

According to the plaintiff's evidence, plaintiff, age 66, was keeping house for her nephew, the defendant, while his mother, who was plaintiff's sister, was in the hospital. In exchange the defendant, a painter, was to paint a bedroom for plaintiff. On the evening of the accident plaintiff and defendant was starting to the hospital from defendant's residence. There was a small landing on the north side of the house, just outside the kitchen door, with four wood steps from the landing to the sidewalk. These steps were about 4 feet wide, with what appear from the photographs to be treads and risers of usual size and height. The south end of the steps butted against the house. At the north end of the steps, running from the landing to the bottom step, was a wood 2 4 handrail, about waist high, fastened at one end to an upright post on the landing and at the lower end to an upright partly cut into the bottom step. 1 The steps were wet from a recent rain. Plaintiff was wearing a wedge type shoe, leather soles, with heels about an inch high. She was carrying a pocketbook in her left hand and started down the steps, alone, with her right hand on the railing. She had her left foot on the last step and was in the act of stepping with her right foot to the walk, when, she testified, the handrail gave way to the right, causing her to lose her balance and fall, injuring herself. Plaintiff indicated to the jury with her hands how far the rail gave when she lost her balance. In answer to her counsel's question, 'You are indicating some three or four inches?', she replied, 'Yes.'

Plaintiff called a consulting engineer, Edward W. Bilhorn, who testified to an examination he made of the landing and railing. He testified that '* * * if one placed his hand on the handrail in the normal process of descending, that the handrail was free and capable of being moved laterally, that it would move from left to right with a person descending approximately half an inch in the normal application of force--either way from its normal at rest position.' He made tests 'to determine the stability of the handrail for lateral motion'. By placing his hand on the handrail near the bottom he exerted lateral pressure, which he said 'would not exceed twenty pounds in either direction', first to the right (away from the house), then to the left (toward the house). He found 'a total displacement of approximately an inch and three-quarters'. Plaintiff introduced into evidence two photographs showing the witness making these measurements. These photographs show the witness standing on the second step from the top, bending forward, holding an extension ruler in his left hand, horizontally, with one end against the wall of the house and the other end on the handrail; with his right hand the witness is grasping the handrail about a foot or so above the bottom end. In one photograph he is exerting lateral force to his right, in the other to his left, and a comparison of the position of the edge of the railing on the graduations of the extension ruler in the two photographs shows the lateral displacement between one extreme and the other.

When asked on cross-examination how he knew the force was about 20 pounds he said that 'if I rested my hand on a scale, for example, and leaned against it, I happen to know it's about twenty pounds' and that he tried not to apply a force greater than would be normal in ascending or descending the steps. 2

Defendant countered with another consulting engineer, Frederick Baggerman, who inspected the landing and the railing for defendant. He tested for the amount of lateral movement in the railing by fastening a small spring scale, hand size, to the rail and then applying a lateral load, first away from the house and then toward the house. The spring scale in question had a calibrated face, graduated uniformly from zero to 25 pounds, with a movable pointer. There was a ring at the top of the scale by which it could be held. At the other end was a blunt hook attached to the spring mechanism. By holding the ring at the top and pulling on the hook at the bottom the pointer would move and the amount of force applied in pounds could be read on the scale. The witness put a loop of heavy twine around the unright supporting the lower end of the railing. He then engaged the hook in the loop. He tied another piece of twine to the ring in the other end of the scale and by pulling on the twine applied a load of 25 pounds to the handrail laterally, first away from the house and then towards the house, and measured the position of the handrail each way with respect to its position with no load. Defendant put in evidence two snapshots of this test being made. In one snapshot the twine is slack and in the other it is tight, with the scale showing 25 pounds pull and the extension ruler showing a lateral displacement of the rail to the right of half an inch. Using the same arrangement and with the same amount of pull toward the house the deflection was give sixteenths of an inch, for a total movement of slightly under an inch.

The scale in question was identified by the engineer and he referred to it in his testimony. It was marked as an exhibit, offered in evidence by defendant, and admitted without objection by plaintiff. Then as the photographs and scale were passed to the jury, defendant's counsel asked the jurors to pull on the scale and 'see how much pounds twenty-five is'. The record does not show how many jurors pulled on the scale, but at least one did. The record does not show how the pulling was done by the jurors, whether one held and another pulled, or whether they hooked the scale on some projection and pulled, or whether jurors simply held the scale in one hand and pulled with the other. Plaintiff objected on the ground that the jurors were in a different position, they were seated, not upright and stepping downward or leaning on anything with the weight on one foot, that they were pulling on the scale, not pushing against something, that this was in no way similar to anything that occurred at the time of the fall and that the entire procedure was misleading and prejudicial, which objection was overruled.

Defendant's position is that the scale was offered in evidence not as a test of what plaintiff had or had not done, but to supply an objective standard to clarify the conflicting findings of the two engineering witnesses who had made tests as to the lateral movement in the handrail, which bore on the question before the jury as to whether the amount of movement existing in the handrail was of such magnitude as to be a dangerous condition. 3

Neither side has been able to find a case closely in point on the facts, nor have we. However, on general principles of trial practice and evidence we do not believe what the court permitted the jurors to do was error. Plaintiff's...

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3 cases
  • State v. Marks
    • United States
    • Missouri Court of Appeals
    • October 21, 1986
    ...within the sound discretion of the trial court. Fowler v. S-H-S Motor Sales Corp., 560 S.W.2d 350, 356 (Mo.App.1977); Geisel v. Haintl, 427 S.W.2d 525, 529 (Mo.1968). The demonstrations performed by Detective Parker were clearly relevant to explain the testimony of David and Kathie Warren, ......
  • State v. Bryant
    • United States
    • Missouri Court of Appeals
    • March 19, 1974
    ...when relevant, is within the sound discretion of the trial court. State v. Hendrix, 454 S.W.2d 40(8) (Mo.1970); Geisel v. Haintl, 427 S.W.2d 525(2) (Mo.1968). Defendant contends the challenged items of demonstrative evidence were redundant since each was corroborated by oral testimony. The ......
  • State v. Sadler
    • United States
    • Missouri Court of Appeals
    • February 3, 1981
    ...to the ground. Demonstrations in front of a jury are matters that are within the sound discretion of the trial judge. Geisel v. Haintl, 427 S.W.2d 525, 529 (2) (Mo.1968). We see no reason to hold that the court abused its discretion in the trial of this case when defendant was required to r......

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