Koehler v. Wells

• Decision Date: 13 September 1929
• Docket Number: No. 28048.,28048.
• Citation: 20 S.W.2d 31
• Parties: ETHEL A. KOEHLER v. ROLLA WELLS, Receiver of United Railways Company of St. Louis, Appellant.
• Court: Missouri Supreme Court

20 S.W.2d 31

ETHEL A. KOEHLER v. ROLLA WELLS, Receiver of United Railways Company of St. Louis, Appellant.

No. 28048.

Supreme Court of Missouri. Division One.

September 13, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. William H. Killoren, judge.

AFFIRMED.

T.E. Francis and Vance J. Higgs for appellant.

(1) Defendant's instruction in the nature of a demurrer, offered at the close of plaintiff's case and again at the close of the whole case, should have been given for the reason that the testimony of plaintiff wholly failed to establish that the fall from the car, which resulted in Charles Koehler's death, was caused by his receiving an electrical shock due to the negligence of the defendant. Only two means were suggested by the witnesses for plaintiff by which the jury could infer that the plaintiff received an electrical shock, viz.: (a) If the trolley pole was grounded and some part of his body touched the trolley pole and another part of his body was in contact with the trolley or some other charged wire at a time when the trolley pole and charged wire were unattached, or (b) if some part of his body was in contact with the feed wire at a time when another part of his body was in contact with a grounded metallic substance. The plaintiff produced no proof of any evidence whereby the jury could logically infer that the facts upon which the above hypotheses are based did, in fact, exist. A jury cannot treat their disbelief of defendant's uncontradicted testimony as supplying the lack of affirmative evidence required of plaintiff to make out a case. Spain v. Burch (Mo. App.), 154 S.W. 176. The case could not have been submitted to the jury on any theory other than the testimony of Oliver McCarthy, the brother of plaintiff, who stated that at a time when deceased lay a corpse and was in his coffin, he observed a burn on the palm of his hand. Under no circumstances could the jury find for plaintiff on the testimony of this witness, unless the jury based its conclusions upon a series of inferences, without any intervening facts, viz.: (a) that the burn was caused by an electrical shock, and (b) from that infer that such electrical shock occurred while deceased was on defendant's car, and (c) from that infer that the top of said car was grounded. Sexton v. St. Ry. Co., 245 Mo. 254; Phillips v. Travelers Ins. Co., 228 Mo. 175; State ex rel. Public Utilities Co. v. Cox, 298 Mo. 427. The defendant's positive proof that the top of the street car was insulated can be reviewed by this court, for it is well settled that where plaintiff's case is based upon inferences it must fail when it is met with proof of undisputed and uncontradicted facts inconsistent with such inferences, and under such circumstances this court will review defendant's testimony. Rashall v. Railway Co., 249 Mo. 509. (2) The court erred in allowing the plaintiff to interrogate the witness Frank Zykan as to the possibilities of deceased having received an electrical shock, when such testimony was based upon an opinion deduced from hypothetical facts not in evidence. Henderson v. Railway Co., 301 Mo. 415; Russ v. Railway Co., 112 Mo. 48; Root v. Railway Co., 195 Mo. 377; Perkins v. Wilcox, 294 Mo. 700. (3) Plaintiff's Instruction 8 is erroneous in that it authorized the jury to award plaintiff damages instead of assessing a penalty. Grier v. Railway Co., 286 Mo. 523; Treadway v. Railways Co., 300 Mo. 156; Pedigo v. Railway Co., 299 S.W. 113.

Perry & Barker, George O. Durham and Forrest G. Ferris, Sr., for respondent.

(1) The trial court did not err in refusing to give defendant's instruction in the nature of a demurrer to the evidence at the close of the case. (a) The defendant, not having stood on his demurrer at the close of plaintiff's evidence in chief, and having put on his own case, a final demurrer searches all the testimony to see if plaintiff's case was not aided by defendant's proof. Staffer v. Railroad, 243 Mo. 305. (b) "On demurrer to the evidence, the right doctrine to go by is: Defendant's testimony, where contradicted, is taken as false; plaintiff's, whether contradicted or not, is taken as true; discrepancies, contradictions between witness or self-contradiction by witness, together with the credibility of the witness and the weight due his testimony, are for the jury, not the court, so, plaintiff is entitled to the grace of having allowed in his favor every inference springing reasonably on the proof." Fritz v. Railroad, 243 Mo. 77; Williams v. Railroad, 257 Mo. 87; Huntington v. Wethington, 205 Mo. 284; Gannon v. Gas, Co., 145 Mo. 502. (c) The law, out of regard to the instinct of self-preservation, presumes that the deceased at the time was in the exercise of due care, and this presumption is not overthrown by the mere fact of injury. The burden rests upon the defendant to rebut this presumption by pleading and proof. Flynn v. Railroad, 78 Mo. 195, 212; Tibbels v. Railroad (Mo. App.), 219 S.W. 114; Cahill v. Railroad, 205 Mo. 393. (d) There was evidence of an electrical burn and of an electrical shock. In order for the jury to find that deceased was thrown from the car by an electric shock, it was not necessary for the jury to pile inference upon inference. Merkel v. Ry. Mail Assn., 205 Mo. App. 484; Grief v. Ry. Co., 205 N.Y. 239. (c) There was ample evidence to justify the jury in finding that defendant did not discharge the duty which the law imposed upon him of furnishing deceased a reasonably safe place to do his work; and ample evidence to find that the defendant's plan or manner and method of doing the work, with deadly electric currents on live wires over and through the car, without furnishing rubber gloves, or cutting off the electric current, which could have been readily done, was unsafe, dangerous and negligent (2) The court did not err in giving plaintiff's decision on the measure of damages. The action was brought under Sec. 4218, R.S. 1919, and it was tried by both parties on that theory. Defendant asked no instruction on measure of damages. Casey v. Transit Co., 205 Mo. 721; Powell v. Railroad, 255 Mo. 420; Browning v. Railroad, 124 Mo. 55; Morton v. Constr. Co., 280 Mo. 360.

ATWOOD, P.J.

This is an action for damages by the surviving widow of Charles R. Koehler who was fatally injured in a fall from the top of a street car, where as an employee of defendant (appellant herein) he was engaged in replacing a trolley pole. Plaintiff alleged that the fall was induced by an electrical shock received by her husband through the negligence of defendant. From a judgment in favor of plaintiff for ten thousand dollars defendant has appealed.

Plaintiff's petition contained several assignments of negligence. Defendant's answer was a general denial. The grounds of negligence submitted were: that defendant negligently failed to furnish Koehler with a reasonably safe place to work, in that at the time and place in question defendant negligently failed and omitted to provide any reasonably sufficient and proper method of shutting off the electricity from the trolley wire while the trolley pole was being replaced; that defendant adopted and directed a plan and method of performing the work of replacing trolley poles on cars in sheds while the trolley wires were charged with high and deadly currents of electricity, and that such plan and method was unsafe and dangerous and negligent, and that at the time and place in question said Koehler was working in accordance with said plan; and that with knowledge of such defendant negligently failed to furnish rubber gloves for the use of Koehler in said work.

Appellant's first assignment of error is that the trial court erred in failing to give defendant's instruction in the nature of a demurrer offered at the close of plaintiff's case and again at the close of the whole case. Since defendant did not stand on its demurrer at the case of plaintiff's case but went Demurrer on and put in its own case, in passing on the to Evidence. court's action with reference to the final demurrer we will search all the testimony to see whether or not plaintiff's case was aided by defendant's proof. [Stauffer v. Railroad, 243 Mo. 305, 316.] In passing on a demurrer to the evidence the right doctrine is thus stated in Fritz v. Railroad, 243 Mo. 62, 77:

"Defendant's testimony, where contradicted, is taken as false; plaintiff's, whether contradicted or not, is taken as true; discrepancies, contradictions between witnesses or self-contradictions by witness, together with the credibility of the witness and the weight due his testimony, are for the jury, not the court. So, plaintiff is entitled to the grace of having allowed in his favor every inference springing reasonably on the proof."

To the same effect are Williams v. Railroad, 257 Mo. 87, 111-112; Hunter v. Wethington, 205 Mo. 284, 293; and Gannon v. Gas Co., 145 Mo. 502, 517.

Counsel for appellant say that defendant's instruction in the nature of a demurrer offered at the close of plaintiff's case and again at the close of the whole case should have been given, for the reason that the evidence wholly failed to show that deceased's fall from the car was caused by his receiving an electrical shock due to the negligence of defendant.

In the light of the above precepts we do not think this contention is supported by the record. Plaintiff's husband was injured in the nighttime between twelve and one o'clock of March 26, 1923. He was immediately taken to a hospital where ...