King v. Ringling

• Decision Date: 28 June 1910
• Citation: 130 S.W. 482,145 Mo.App. 285
• Parties: EMMA KING, Respondent, v. ALBERT RINGLING et al., Appellants
• Court: Kansas Court of Appeals

130 S.W. 482

145 Mo.App. 285

EMMA KING, Respondent, v. ALBERT RINGLING et al., Appellants

Court of Appeals of Missouri, Kansas City

June 28, 1910

Appeal from Buchanan Circuit Court.--Hon. L. J. Eastin, Judge.

Judgment reversed.

John M Kelly and Rusk & Stringfellow for appellants.

(1) An inference can be drawn only from facts, and that one inference cannot be based on another inference. Swearingen v. Railroad, 120 S.W. 778; Cahill v Railroad, 205 Mo. 404; Haynie v. Packing Co., 126 Mo.App. 92. (2) An inference cannot even be based on a presumption of law. Looney v. Railroad, 200 U.S 480. (3) This is a negligence case. The doctrine of res ipsa loquitur does not apply. The principle of res ipsa loquitur applies only to those injuries whose mere occurrence implies a breach of duty. Erwin v. Railroad, 94 Mo.App. 289; Kelley v. Railroad, 105 Mo.App. 375. (4) The pulling of the stakes, if any were pulled, was not the proximate cause of the accident. The storm which struck the tent was the immediate agency that did the injury to the tent. It was the efficient cause. The pulling of the stakes was at best only a condition and a trivial circumstance. This being true, even if it was negligent for defendants' agents to pull such stakes, defendants would still not be liable for the reason that the catastrophe would have happened, and actually did happen, regardless of this circumstance. Kappes v. Brown Shoe Co., 116 Mo.App. 167; Lynch v. St. Louis Transit Co., 102 Mo.App. 630; Stone v. Railroad, 171 Mass. 536; Nephler v. Woodward, 200 Mo. 179.

Culver, Phillip & Spencer for respondent.

OPINION

JOHNSON, J.

This action is to recover damages for personal injuries alleged to have been caused by the negligence of defendants. A trial before a jury resulted in a verdict and judgment for plaintiff in the sum of six hundred dollars, and the cause is before us on the appeal of defendants.

The injury occurred in the city of Maryville in the afternoon of September 18, 1905, at a performance of a traveling show of which defendants were the proprietors. Plaintiff and her husband had paid the admission fee charged by defendants and were occupying "general admission" seats in the "main tent," when a violent storm wrecked one end of the tent and threw the spectators of the performance into a panic. In the general rush to escape, plaintiff was struck by a falling board or timber and one of her legs was broken. The issue of negligence presented by the pleadings and evidence is whether or not the supports of the tent were weakened by the servants of defendants in preparation to break camp during the performance in the circus tent and shortly before the storm broke. Plaintiff contends that such negligence was the proximate cause of the injury, while defendants deny that the supports were weakened and contend that the storm that wrecked the tent was so extraordinary in its suddenness and violence that it should be classed in law as an act of God.

There is no contention that the tent and its supports and fastenings were defective in construction or that any part of the structure and its connections were out of repair, nor is any point made against the manner in which the tent was erected. Plaintiff founds her cause of action on the sole fact, testified to by a number of her witnesses, that after the performance began, alternate stakes at one end of the tent were pulled by a gang of workmen operating a stake pulling machine. The existence of this fact is denied by the witnesses of defendants who say, in the first place, that it would have been impossible to pull stakes before the canvas had been lowered to the ground and, in the second place, that alternate stakes to which certain auxiliary guy ropes were attached could have been withdrawn from use without sensibly diminishing the strength of the actual supports of the tent and since the evidence of plaintiff does not show to the contrary, the presumption should be indulged that only those stakes were pulled, if any, which were not essential to the stability of the tent.

A thorough description of the tent is essential to a proper understanding of the points in controversy. Below in Fig. 1, is a reproduction of a photograph of a perfect model of the tent. Fig. 2, exhibits a detail of the supporting ropes and the stakes to which they were attached.

[SEE Fig. 1 IN ORIGINAL]

The tent was 440 feet long and 190 feet wide. It had six center poles and three circles of lesser poles to support and give to the canvas necessary elevation and convexity. The center poles were 54 feet long; the poles of the inner circle were 41 1-2 feet long; those of the next circle were 31 feet and those of the outside circle which were set back of the seats for spectators were 14 feet. The frame of the covering consisted of large manilla rope interwoven, to which was sewed the canvas which was of ten ounce drill. The center poles were held in place by independent guy ropes. The covering was ribbed with radiating lines of rope which continued beyond the circumference of the canvas and became the guy ropes by which the canvas was securely fastened to stakes driven in the ground. The main guy [SEE Fig. 2 IN ORIGINAL] ropes were of the ribs pierced by the tops of the outer circle of poles and each was attached to two stakes (numbered 1 and 2 on Fig. 2). These ropes were ten feet apart. Spliced to each at a point near the pole top was another diverging guy rope called a "hook rope" which was fastened to stake No. 3. Midway between each pair of these double guy ropes was a single guy rope which also formed a part of the framework of the covering and which was attached to stake No. 4. This construction gave to each five feet of canvas circumference a group of three guy ropes attached to four stakes in all. The ropes were one inch manilla and each had a breaking strain of 9000 pounds. The stakes were 4 1-2 to 5 1-2 feet long. The soil into which they were driven was tenacious and it was found that the wreck of the tent had not pulled up any stakes, nor had it broken any of the guy ropes. The seat structure was entirely independent of the tent. There was a framework of jacks and stringers not in any way connected with the tent or its supports and the seats consisted of boards held in place but unattached to the framework. These boards were displaced in the panic and it is likely that one of them, in falling, broke plaintiff's leg. The canvas curtains that depended vertically from the circumference of the covering or roof were fixed in a way to prevent wind from blowing in under the roof but they could be easily opened to afford ready egress from the tent. The general direction of the tent lengthwise was east and west. On the north side were three separate dressing tents. On the south were the menagerie and various other tents. The...