Grote v. Hussmann
| Decision Date | 08 June 1920 |
| Parties | FREDERICK GROTE and WILLIAM GROTE, Executors of the Estate of C. AUGUST GROTE, Respondents v. HARRY L. HUSSMANN, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Benjamin J. Klene, Judge.
AFFIRMED.
Judgment affirmed.
Clarence T. Case and Victor J. Miller for appellant.
(1) The rule in Missouri is that where plaintiff has by a negligent act on his part directly contributed to his own injury, he may not recover, regardless of how his carelessness compares with the other contributory causes of the injury. Newton v. Wabash Railway Company, 152 Mo.App. 167; Schmidt v. St. Louis Railroad, 149 Mo. 269, 287; Neal v Gillett, 23 Conn. 443. Where testimony for plaintiff establishes truth of facts set up as new matter in answer and these facts preclude recovery upon part of plaintiff, trial court, as matter of law, should direct verdict for defendant. Torry v. Hardy, 196 S.W. 1100; Powell v. Railway Co., 76 Mo. 83; Hudson v. Railway Co., 101 Mo. 14; Meteer v. Railway Co., 105 Mo. 320; McFarland v. Railway Co., 125 Mo. 254; Homuth v. Street Railway Co., 129 Mo. 629; Sissele v. Railway Co., 214 Mo. 515; Van Dyke v. Railroad, 224 Mo. 259; Collett v. Kuhlman, 243 Mo. 585; Burge v. Railroad, 244 Mo. 76; Reeves v. Railroad, 215 Mo. 169; Rollison v. Railroad, 252 Mo. 525; Kelle v. Railroad, 258 Mo. 62; Vandeventer v. Railway Co., 177 S.W. 839. (2) The proximate cause of an injury is that negligence which sets in motion a train of events that in natural sequence might and ought to be expected to produce an injury as undisturbed by an independent intervening cause. Powell v. Walker, 195 Mo.App. 150; Marshall v. United Railways Co., of St. Louis, 184 S.W. 164, 209 S.W. 931. (3) While the appellate court will not ordinarily disturb the verdict of the jury on the question of the weight of the evidence, it will not hesitate to do so when the verdict is not supported by the evidence. Lyons v. Conder, 253 Mo. 539, 561; Powell v. Mo. Pac., 76 Mo. 84; McFarland v. Accident Ass'n, 124 Mo. 222; O'Donnell v. Railroad, 152 Mo.App. 614; Fitzjohn v. Transit Co., 183 Mo. 78; Knisely v. Leathe, 178 S.W. 461; College v. Dockery, 241 Mo. 522; Van Zandt v. Wholesale Groc. Co., 196 Mo.App. 658. (4) An instruction for plaintiff which purports to cover the whole case is erroneous if it omits any reference to defenses pleaded and in evidence or assumes a controverted fact to be true. Van Zandt v. Wholesale Gro. Co., 196 Mo.App. 641; King v. Lusk, 196 S.W. 67, 69; Neely v. Snyder, 193 S.W. 610; Riesmiller v. St. Louis, etc., Railway Co., 187 S.W. 573, 574; Peoples Bank of Ava v. Baker, 193 S.W. 632. (5) Plaintiff's own negligence, which produced his injury, was the proximate cause of that injury, and should so have been declared as a matter of law. Marshall v. United Railways Company, 184 S.W. 165, 209 S.W. 931. (6) No duty is imposed by law upon the owner or occupier of a building to keep said premises in a suitable condition for use of a mere licensee. Behre v. Hemp & Co., 191 S.W. 1038; Shaw v. Goldman, 116 Mo.App. 332, 342.
William F. Woerner and Campbell Cummings for respondent.
(1) Both under the allegations of the petition and under the evidence, the plaintiff clearly was not a mere licensee, but an invitee; he was not only impliedly such, but was expressly invited, requested and directed by the defendant himself to go to an upper floor on business for the benefit of defendant. Defendant was, therefore, liable for his negligence in failing to keep his premises in reasonably safe condition for that use thereof to which he had invited plaintiff. Glaser v. Rothschild, 221 Mo. 180; Aiken v. Sidney Steel Scraper Co., 197 Mo.App. 673, Shaw v. Goldman, 116 Mo.App. 332, 338-340; Hubbard v. Wabash Railway (Mo. Sup.), 193 S.W. 579, 584, 9 Rul. Case L., p. 1256, par. 22; Morgan v. Saks, 143 Ala. 139. (2) Here the petition is clearly impervious to attack on direct demurrer. But even if it were not, and if it stated a cause of action defectively, or imperfectly, it would be good against the objection to introduction of evidence, which is a method of attack which the courts do not encourage or favor, and only permit where the petition states no cause of action at all. Applegate v. Railroad, 252 Mo. 173, 194-195; Sharp v. Railway Co., 213 Mo. 517, 527; McDermott v. Claas, 104 Mo. 14, 21-22; O'Hara v. Lamb Const. Co., 200 Mo.App. 292, 298. (3) The plaintiff was not chargeable with contributory negligence, at all events not as a matter of law. This was properly left to the jury under the circumstances shown by the evidence in this case. Aiken v. Sidney Steel Scraper Co., 197 Mo.App. 673, s. c. 198 S.W. 1139; Johnson v. Railroad, 150 Mo.App. 304, 323-324; 9 Rul. Case L., p. 1257; Roper v. Greenspon, 272 Mo. 288, 303-304; Morgan v. Saks, 143 Ala. 139, 141. Where the facts with respect to negligence are such that reasonable minds differ, the case must go to the jury. The issue as to contributory negligence must always be submitted to the jury, unless the only rational inference to be drawn from the undisputed facts excludes the idea that such care was observed as a person of ordinary prudence would have exercised under the particular facts of the case. Aiken v. Sidney Steel Scraper Co., supra; Threlkeld v. Wabash Railway Co., 68, Mo.App. 127, 131; Enloe v. Car & Foundry Co., 240 Mo. 443, 448; Roper v. Greenspon, 272 Mo. 288, 303; Brown v. M., K. & T. Railway Co., 201 Mo. 316. (4) It is not necessary to determine the question whether the law of this State requires "an instruction for plaintiff which purports to cover the whole case" to incorporate a reference to the affirmative defense of contributory negligence (on which point the cases in this State are at variance: See Bliesner v. Dist. Co., 174 Mo.App. 141, 150; Meily v. Railroad, 215 Mo. 567, 587; Johnson v. Railroad, 150 Mo.App. 306, 323; Wingfield v. Railroad, 257 Mo. 375-379; Riegel v. Biscuit Co., 169 Mo.App. 513). That rule is not invocable here because the plaintiff's instruction did this very thing, in conditioning plaintiff's recovery on his having proceeded "in the exercise of ordinary care." This is a sufficient reference to the issue of contributory negligence to direct the attention of the jury thereto so that the instruction is not inconsistent with the defendant's specific instructions on contributory negligence. Wright v. Mining Co., 163 Mo.App. 536, 538-539. A reference to such defense may be either affirmative or negative. Enloe v. Car & Foundry Co., 240 Mo. 443, 448. Hence, not being inconsistent, all the instructions should be read together, and that issue was fairly submitted. Craig v. United Railways, 175 Mo.App. 618, 628. (5) Leaving the floor entrance to a passenger elevator shaft wide open in a poorly lighted locality is actionable negligence. Aiken v. Sidney Steel Scraper Co., 197 Mo.App. 673, 198 S.W. 1139; 9 Rul. Case L., p. 1257, par. 23; Morgan v. Saks, 143 Ala. 139. See, also, Threlkeld v. Wabash Railway, 68 Mo.App. 127, 131. Especially is this true when associated with the defendant's employee standing by with his hand on such open door as if awaiting the passenger's entry into the car. (6) Even where there is error in an instruction, that will not permit of reversal, if the error is in a mere matter of inducement, or if it is harmless or nonprejudicial, or does not go to the merits so as to affect the substantial rights of the adverse party. R. S. 1909, secs. 1850, 2082; Hubbard v. Wabash Railway, ___ Mo. ___, 193 S.W. 579, 585, par. 6, 8, 9; Montgomery v. Deering Railway, 194 S.W. 894, 896; Sharp v. Railway, 213 Mo. 517, 528; Peterson v. Transit Co., 199 Mo. 331, 344; Roberts v. Central Co., 95 Mo.App. 581, 598. The judgment is obviously not excessive. Hubbard v. Wabash Railway (Mo. Sup.), 193 S.W. 579 l. c. 584.
This is an action for damages for personal injuries, alleged to have been sustained by C. August Grote, by falling down an elevator shaft on the premises of appellant Hussmann.
Since the appeal was filed in this court, the original plaintiff died, and the present respondents were substituted as parties plaintiff.
The jury returned a verdict for plaintiff in the sum of $ 10000.
The defendant filed a motion for new trial, after which the trial court made an order that unless plaintiff remitted $ 5,000 from the verdict, the motion for new trial would be sustained. Plaintiff thereupon filed his remittitur in the sum of $ 5,000. The court then overruled the motion for a new trial, and defendant appeals.
The negligence alleged in the petition is that defendant and his agents and servants in charge of the elevator carelessly and negligently opened, and caused and permitted to stand open, said entrance door of said elevator shaft, and failed to guard the open entrance, when they knew, or should have known by the exercise of ordinary care, that by reason of the dark condition of said shaft, plaintiff, by the exercise of ordinary care, would not know that the elevator was not at the entrance, and that they carelessly and negligently failed to keep said elevator shaft entrance closed and properly guarded, or to properly warn plaintiff.
Defendant's answer was a general denial and a plea of contributory negligence, in that plaintiff saw, or by the exercise of ordinary care could have seen, that the elevator was not at the floor, and that although warned by defendant not to go into the opening, the plaintiff carelessly and negligently pushed himself past one of defendant's servants and stepped into said opening and fell to the bottom of the shaft.
Plaintiff's reply was a general denial.
Plaintiff...
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