Gundelach v. Compagnie Generale Transatlantique

• Decision Date: 28 July 1931
• Docket Number: 28835
• Parties: GUNDELACH v. COMPAGNIE GENERALE TRANSATLATIQUE
• Court: Missouri Supreme Court

41 S.W.2d 1

GUNDELACH v. COMPAGNIE GENERALE TRANSATLATIQUE

No. 28835

Supreme Court of Missouri, First Division

July 28, 1931

Leahy Saunders & Walther and J. L. London, all of St. Louis, for appellant.

Smith & Pearcy, of St. Louis, for respondent.

OPINION

ATWOOD, J.

This case has been reassigned to the writer. It is an appeal by plaintiff, William J. Gundelach, from a judgment in favor of defendant, Compagnie Generale Transatlantique, in an action for personal injuries alleged to have been sustained by plaintiff through defendant's negligence on November 15 1921, while he was a passenger on defendant's steamship City of Chicago plying from Havre, France, to New York City. Plaintiff alleged negligence as follows:

(1) Defendant's failure 'to place a rope or other device on the deck between the ship proper and the permanent railing, or anywhere on the deck which would have enabled plaintiff, by holding on to the same, to walk along the deck without falling.'

(2) Defendant's failure 'to provide a guard or railing of any kind on the said deck.'

(3) Defendant's failure 'to post signs or notices of danger of walking on the deck while wet and slippery.'

(4) Defendant's failure 'to warn the plaintiff of the danger of walking upon the said deck while wet and slippery.'

(5) Defendant's failure 'to take any precaution to clean the said deck, which was wet and slippery, or to dry the said decks after a storm which had previously been raging had subsided.'

Plaintiff further alleged that he suffered from negligent and unskillful treatment of defendant's physician.

Defendant filed answer setting up several defenses, but parts thereof including the defense of contributory negligence, were stricken out on plaintiff's motion so that finally in effect it stood as a general denial.

The evidence tended to show that the ship left Havre, France, about the 9th of November, 1921; that it encountered bad weather and the decks of the ship had become wet and slippery; that on November 15th plaintiff arose about 6 or 6:30 o'clock a. m. and found the day bright and calm; that he went on the deck between 7 and 8 o'clock, and, while carrying a deck chair from the right or starboard side of the ship around to the left or port side, he slipped fell, injuring his left shoulder; that defendants doctor had plaintiff's shoulder massaged; that plaintiff had X-ray pictures taken on his arrival at New York and again on his arrival at St. Louis, but none of these pictures disclosed a fracture; that on or about December 1st he had other pictures taken which disclosed a fracture of the greater tuberosity of the left humerus, and for a long time thereafter he suffered from and was treated for this fracture.

The only errors urged on this appeal relate to certain instructions given. Appellant's first complaint is directed to instruction No, 4. which is as follows: 'The Court instructs the jury that if you find and believe from the evidence that the plaintiff's fall and injury was directly and proximately caused by reason of the sudden pitching of the ship and the slippery condition of the deck, both of which were occasioned by a sudden condition of the weather and by a storm which was prevailing at the time of plaintiff's fall, then your verdict must be in favor of the defendant.'

Plaintiff testified without contradiction that he was injured immediately after he went out on the deck between 7 and 8 o'clock in the morning of November 15th. He further...