Karguth v. Donk Bros. Coal & Coke Co.

Decision Date11 June 1923
Docket NumberNo. 23490.,23490.
Citation253 S.W. 367,299 Mo. 580
CourtMissouri Supreme Court
PartiesKARGUTH v. DONK BROS. COAL & COKE CO.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

Action by Rose Karguth against the Donk Brothers Coal & Coke Company. From an order granting a new trial after a verdict for plaintiff, plaintiff appeals. Reversed and remanded, with directions.

Joseph T. Strubinger and Percy Werner, both of St. Louis, for appellant.

Jourdan, Rassieur & Pierce and Fred L. English, all of St. Louis, for respondent.

Statement.

BAILEY, C.

On January 20, 1921, plaintiff filed in the circuit court of the city of St. Louis, Mo., an action against the above-named defendant, and in her petition alleged that she was a citizen and resident of the city aforesaid; that said defendant is a Missouri corporation, engaged in the business of selling and delivering coal to customers residing in said city of St. Louis; that on or about November 20, 1920, while she was walking eastwardly on the south sidewalk along Easton avenue, one of the public streets of said city, and in the usual place for pedestrians, and when she had reached a point about opposite the premises known as 4762 Easton avenue, a servant of the defendant engaged in delivering coal at said premises, in attempting to throw coal from a wagon, in which it had been transported, across the sidewalk and into a cellar opening, negligently hurled a shovel full of coal suddenly and violently onto and against her, knocking her down and inflicting serious and painful injuries, which are set out with particularity in said petition. The latter also specifies certain expenses incurred, and the damages claimed, to the extent of $15,000.

The defendant, in its amended answer, on which the case was tried, denied the truth of every allegation contained in said petition. not further charges that plaintiff walked between the coal wagon, which was there being unloaded, and the coal hole, into which the coal from said wagon was being thrown, when she saw, or by the exercise of ordinary care could have seen, that the driver of said wagon was then unloading, and in the act of throwing, a shovel full of coal from said wagon into said coal hole, and walked into a position of danger between said wagon and said hole, without making any effort to ascertain whether coal was being thrown from said wagon, and without giving the driver of said wagon any notice of her intention to pass between said wagon and coal hole, when she saw, or by the exercise of ordinary care could have seen, that said driver was about to throw a shovel full of coal from said wagon into said coal hole. It is charged that the above acts of negligence on the part of plaintiff directly contributed to cause whatever injuries, if any, were sustained by her on said occasion.

The reply denied the new matter pleaded in said answer.

The case was tried before a jury, and the latter returned a verdict in favor of plaintiff for $8,100. Defendant, in due time, filed its motion for a new trial. In considering same, the trial court reached the conclusion that plaintiff failed to furnish sufficient evidence to show that the coal driver, who injured plaintiff, was in the service of defendant, or that he was defendant's agent at the time plaintiff was injured. The court thereupon sustained defendant's motion for a new trial as to the sixth ground thereof, which reads as follows:

"6. The court erred in overruling the instruction in the nature of a demurrer to the evidence offered and requested by the defendant at the close of all the evidence."

The plaintiff appealed from the order granting defendant a new trial, and hence it will be necessary, in passing upon the case, to fully consider the testimony presented in the record.

Plaintiff's Evidence.

H. C. Baublitz, a witness for plaintiff, testified that he was a lace curtain cleaner, and his place of business was at 4762 Easton avenue; that he had lived in the city of St. Louis, Mo., since 1914; that on November 20, 1920, he ordered some coal delivered at his premises from Donk Bros., who had been supplying him with coal for about three or four months; that 50 bushels lasted him about three weeks; that he ordered the coal on above date over the telephone, and at the time it was ordered told them it was to be put in the basement; that he called up the office of Donk Bros. Coal Company, and was referred to the city agent; that the coal was delivered in a day or two after said order, to wit, on November 20, 1920, at about 10 o'clock in the morning; that he was there when the coal was delivered, and saw the driver and wagon;" that the driver brought a delivery slip into the business place of witness and the latter read it. It had the name "Donk Brothers Coal & Coke Company" printed on it. There was a small sign at the front of the wagon, attached to the latter, which said "Donk Brothers." This witness further testified:

"I bought this coal from Donk Bros. Coal & Coke Company and paid Donk Bros. Coal & Coke Company for it, and had no dealings with anybody else but Donk Bros. Coal & Coke Company in connection with the delivery of that coal on my premises. My basement is reached from the sidewalk. There is an opening in the sidewalk for the reception of coal, a dividing steel door."

He said it was about 11 feet from the building line to the curb, with a concrete walk between, about eight feet wide. On cross-examination witness testified that he ordered the coal from Donk Bros. Coal & Coke Company. He further testified:

"When the driver came there with the coal, I showed him where the cellar door was, and told him to shovel the coal into the cellar."

On re-examination said witness further testified:.

I told him where it went in. I pointed to the opening, and he opened it himself. The coal had been delivered there at other times. Some used a chute to put it in and some didn't. I had nothing to do with how he put it in."

Mrs. E. Casper, in behalf of plaintiff, testified in substance that she lived at at 34 Easton avenue, near the scene of accident; that she was employed by E. C. Baublitz, and was at his place where the coal was delivered on November 20, 1920; that she saw the coal delivered at that time, and saw the wagon from which it was delivered; that she saw the delivery slip the driver brought in, asking for a receipt; that she saw it and Baublitz's name; that "Donk Brothers" was printed on the slip; that she receipted for the coal and handed the slip back to the driver; that she saw the plaintiff, Mrs. Karguth; that she was in there when witness signed the slip; that she remained there some time and seemed hurt; that Donk Bros. Coal & Coke Company had delivered coal at this place of business prior to that time; that she had seen them deliver coal there a number of times. On cross-examination, she testified:

"The ticket I seen was a weight ticket, showing the amount of coal on the load, and showed a certain amount of coal was delivered at the place."

George J. McCarthy testified in substance that he saw the coal delivered, and saw the plaintiff get hit with a shovelful of coal, as she was walking in front of the coal wagon; that the coal hit her in the side, made her run about 10 feet, and then she fell down; that the driver was on the wagon, in the bed of same, and threw a shovelful of coal, as plaintiff was passing on the granitoid walk, which struck her; that she came from the west and was going east; that he saw the slip the driver had for the receipt of the coal; that it had on it the name of "Donk Brothers Coal & Coke Company." On cross-examination, witness testified that lie had seen the driver shoveling coal into that hole for some time before plaintiff was hit; that the driver had to turn around, stoop down, and get another shovelful, after he had emptied his shovel; that it would take him a minute or two to do this; that the slip brought in was the weight ticket. On redirect examination, witness testified that the driver threw some of the coal on the sidewalk; that—

"Just before the plaintiff was hurt, he was throwing it all the way into the coal door from the wagon, and it was while doing that that the plaintiff was hurt."

Mrs. Rose K. Karguth, the plaintiff, testified in her own behalf, in substance, that she was a widow, earning $75 per month, clerking in a confectionery establishment, and acting as housekeeper for her foster parents, when injured by the coal driver; that she was hurt in front of the Baublitz establishment, about 10 o'clock in the morning. She further testified:

"As I approached that place I noticed a wagon there, and the driver in the bed of the wagon throwing coal in a coal cellar. I waited until he threw the second shovelful, and I knew that he saw me, and I went to go past, and I just passed the coal chute when the coal hit me on the back, throwing me heavily on my side against the building. It hurt both my ankles and bruised me all over the right side, and I was internally injured."

After testifying as to her injuries and suffering, she was cross-examined, and testified as follows: That she was going east, saw the coal wagon back up, and the coal being shoveled into the coal hole in the sidewalk; that she saw the wagon from the time she reached the corner west of it, down to where she was struck; that she stopped while the driver was throwing two shovelfuls in the hole; that the driver saw her, and that she walked on, and he threw a shovelful of coal and struck her; that the driver saw her waiting to get by; that she saw him looking at her; that as the driver threw the second shovelful of coal in the hole, she started to walk between the wagon and the hole; that she did not say anything to him before she started to cross, but she knew he saw her, because he looked at her. On recross-examination, plaintiff testified that the sign which she saw on the coal...

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