Kerns v. Dykes

• Citation: 48 S.W.2d 183,226 Mo.App. 912
• Parties: OLEVIA KERNS, RESPONDENT, v. FLORENCE DYKES ET AL., APPELLANTS
• Decision Date: 11 January 1932
• Court: Kansas Court of Appeals

48 S.W.2d 183

226 Mo.App. 912

OLEVIA KERNS, RESPONDENT, v. FLORENCE DYKES ET AL., APPELLANTS

Court of Appeals of Missouri, Kansas City

January 11, 1932

Appeal from the Circuit Court of Jackson County.--Hon. A. Stanford Lyon, Judge.

REVERSED.

Judgment reversed.

James P. Aylward, Manard & Schwimmer and Joe E. Burris for respondent.

Jacobs & Henderson and Thos. E. Deacy for appellants.

CAMPBELL C. Boyer, C., concurs.

OPINION

CAMPBELL, C.

On August 13, 1924, plaintiff attended a theatrical performance in a tent near Kingston, Missouri. She occupied a seat provided for patrons of the show, which seat, after she had occupied it for about three minutes, collapsed, resulting in severe injury to her. She brought suit, recovered judgment and the defendants have appealed.

Plaintiff has filed motion to dismiss appeal upon the ground that defendants' statement fails to comply with our rule 16. The statement covers more than eleven pages of the printed brief and is sufficiently clear and concise to enable the writer to ascertain the questions presented. [Summers v Cordell, 187 S.W. 5.] The motion is denied.

The negligence charged is that "said defendants, their agents, servants and employees negligently and carelessly caused and permitted the said seats to collapse, or fall down and the boards, runners, props, supports and/or stringers thereof to fall upon and against plaintiff's right leg, ankle and foot with great force and violence, thereby permanently injuring plaintiff."

The answer was a general denial.

The tent and all of the property used in connection with the show was owned and controlled by the defendant Florence Dykes. Defendants Kincaid, Linville and Butts are impleaded upon the theory that they were members of the Missouri Fox Hunters Association, the members of which plaintiff claims are liable as partners; that the association was to receive a part of the receipts and hence said defendants must respond in damages for an injury resulting from the negligence of their codefendant Dykes.

At the close of plaintiff's evidence, and again at the close of all the evidence, defendants severally requested the court to direct verdict in their favor. The requests were refused, and such rulings are assigned as error.

In support of the contention that verdict should have been directed for defendants, counsel say: "The undisputed evidence offered by the plaintiff and by the defendants showed that shortly before the seats fell a number of boys sitting behind the plaintiff were violently swaying the seats back and forth; that the swaying was so violent that the plaintiff, together with other persons stood up and that thereupon the seats fell."

The seats provided for the use of patrons of the show were composed of boards sixteen feet long, twelve inches wide and two inches thick, placed across wooden stringers which were set on wooden jacks braced with stobs driven into the ground.

Plaintiff and two lady companions occupied one of the seats. After they had been seated two or three minutes the seats fell and one of the stringers struck plaintiff on the leg, resulting in an oblique fracture of the bone. Each of the witnesses present at the time of the accident and who testified on behalf of the plaintiff said that just before the seats fell some boys were swaying the seats. One of them testified that she had been in the tent about thirty minutes before the accident; that during that time the seats were standing "up all right," and that just before the accident occurred some boys came in and started the seats swaying "back and forwards;" that until the boys started swaying the seats she saw nothing wrong with them; that while the seats were swaying "I think she (plaintiff) raised up as every body else did."

Another witness on plaintiff's behalf testified that before the boys caused the seats to sway the seats "looked stable to me;" that some boys came in and started swaying some seats; "They were getting up and rocking back and forth;" and thereafter the seats fell.

Plaintiff testified that she and her companions sat down upon a seat; that nothing happened for two or three minutes thereafter; that in about three minutes after they sat down the seats began to sway; that she stood up and the stringer fell on her leg.

There was evidence on defendants' behalf that boys, as many as twelve in number and apparently eighteen to twenty-one years of age, violently rocked the seats before they fell. But in passing on the question under consideration, the evidence offered in defendants' behalf on that subject must be discarded.

Plaintiff relied upon the rule of res ipsa loquitur and offered no evidence tending to show that the seats were negligently constructed or maintained unless the fact that they fell in and of itself raised an inference of negligent construction or maintenance.

The defendant Dykes was not responsible for the conduct of the boys who caused the seats to sway to such an extent that plaintiff and others stood up before the seats fell. It is argued by plaintiff that the seats "were so flimsy as to...