Kean v. Schoening

• Decision Date: 01 December 1903
• Parties: KEAN, Respondent, v. SCHOENING et al., Appellants
• Court: Missouri Court of Appeals

77 S.W. 335

103 Mo.App. 77

KEAN, Respondent, v. SCHOENING et al., Appellants

Court of Appeals of Missouri, St. Louis

December 1, 1903

Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.

AFFIRMED.

STATEMENT.

The instructions in this case were as follows:

For plaintiff:

"1. The court instructs the jury that one who occupies a business house, and sells therein merchandise, and into which he invites the public or the plaintiff to trade with him for their mutual benefit, is bound to keep the premises in a reasonably safe condition. And if the jury finds from the evidence in this cause that on or about the 14th day of November, 1901, the plaintiff entered the defendant's hardware store in question for the purpose of purchasing a coffee pot and that on entering said store, she was met by one of the defendants and that said defendant conducted or directed her to the rear end of said store to look at some coffee pots which defendants were offering for sale and that while she was looking at or examining said coffee pots she stepped backwards and fell into a large hole in the floor of said store, which said hole was caused through leaving a trapdoor covering a stairway leading to the cellar under said store, open and received the injuries to her person complained of; and that plaintiff had no knowledge of the existence of said hole or open stairway until she fell into the same; and that there was no guard or other signal at or near said hole sufficient to give her warning of the existence of said hole or open stairway; and that said hole was dangerous to persons trading in or walking through said store; and that said trapdoor was left open by one of the defendants or their servants at work in or about said store or if not so left open, then that either of defendants knew or by the exercise of ordinary care could have known that said door was open prior to her fall but negligently failed to either close said door or give her warning that it was open; and that at the time of falling plaintiff was using ordinary care and prudence for her own safety, then their verdict must be for the plaintiff.

"2. The court instructs the jury that the words 'ordinary care' as used in these instructions, mean that degree of care which would be used by a person of ordinary prudence under like or similar circumstances as those in connection with which the words 'ordinary care' are used in these instructions, and the absence of such care is what is meant by the word 'negligence' as used in these instructions.

"3. The court instructs the jury that if they find a verdict for the plaintiff they shall assess her damage at such sum as they find from the evidence to be a reasonable compensation to her for any pain of body or anguish of mind they find from the evidence she has suffered through her said injuries and as will repay her for the loss of any earnings they find from the evidence she has sustained through her said injuries and as will reimburse her for any money she has paid or obligated herself to pay for medicine or medical aid, provided however, that they find from the evidence that the medicine and medical aid so charged for were actually necessary and did enter into the treatment of her said injuries and are reasonable in amount and price. And if the jury should further find from the evidence that she will necessarily suffer pain in the future through her said injuries, then they should allow her such further sum as they find from the evidence to be a reasonable compensation to her for any pain they find she will necessarily suffer in the future through her said injuries, but the whole sum of her damages must not exceed $ 4,500.

"4. You are instructed that the jury are the sole judges of the credibility of the several witnesses that have appeared before you, and of the weight or importance to be given to their respective statements or testimony; and if you believe from all that you have seen and heard at the trial, that any witness has willfully sworn falsely as to any of the facts mentioned in the instructions herein, as bearing on the plaintiff's alleged claim or defendants' alleged defenses thereto, then you are at liberty to disregard entirely the testimony of said witness."

For defendants:

"1. And if you find that the plaintiff knew that said door had been opened by the defendants, and that she thereafter stepped or fell into the opening, because she failed to look about her to see whether the door was still left open, then the plaintiff can not recover, and you must return a verdict in favor of the defendants.

"2. If the jury believes from the evidence that the plaintiff knew, or by the exercise of ordinary care on her part she would have discovered that the cellar door in question was left open, then the plaintiff can not recover, even though you may believe that she was injured by falling into the opening.

"3. The court instructs the jury that unless they find from the evidence that it was an act of negligence on the part of the defendants to leave open the cellar door in question, at the time and under the circumstances shown by the evidence, and that the plaintiff did not know, and by the exercise of ordinary care on her part, would not have discovered that said door was left open, there can be no recovery in favor of the plaintiff, and you must return a verdict in favor of the defendants."

There was a verdict and judgment for plaintiff, and defendants filed their motion for new trial, complaining among other things that the court erred in admitting improper and illegal evidence and in giving improper and erroneous instructions at the request of the plaintiff. The...