Lauff v. J. Kennard & Sons Carpet Company

• Decision Date: 08 December 1914
• Citation: 171 S.W. 986,186 Mo.App. 123
• Parties: CONRAD LAUFF, Respondent, v. J. KENNARD & SONS CARPET COMPANY, Appellant
• Court: Missouri Court of Appeals

171 S.W. 986

186 Mo.App. 123

CONRAD LAUFF, Respondent, v. J. KENNARD & SONS CARPET COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 8, 1914

Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.

Judgment reversed and cause remanded.

Smith & Pearcy for appellant.

(1) The court should have sustained the demurrer offered by the defendant at the close of the entire cse, as the evidence does not show any ngligence on the part of the defendant, and for this reason this cause should be reversed without remanding. Plaintiff's evidence is against reason, and the physical facts show it to be untrue, and cannot sustain this action. Daniels v. Railroad, 177 Mo.App. 280; Scroggins v. Railroad, 138 Mo.App. 215; Phippin v. Railroad, 196 Mo. 343. However if admitted as possible and true, the evidence under the law does not show any negligence on the part of the defendant. Hitz v Railroad, 152 Mo.App. 687; Lobach v. Railroad, 172 Mo. 278. It was perfectly plain and obvious to plaintiff at the time that he walked into the space where he was struck what the defendant's driver was attempting to do, and no negligence of the defendant can be inferred from these facts. Where the whole case shows no negligence the court should determine the whole case as a question of law. Boland v Railroad, 36 Mo. 484; Cogan v. Railroad, 101 Mo.App. 188; Hight v. Bakery Co., 168 Mo.App. 431. (2) As a matter of law, the plaintiff was guilty of such negligence in walking behind the wagon at the time that it was being backed, as to bar his recovery. The plaintiff's evidence cannot be true, as it is opposed to the physical facts and the defendant's evidence shows such facts as to bar the plaintiff on account of his own negligence in passing behind the wagon while it was being backed. But if plaintiff's evidence be true it shows that the plaintiff was guilty of negligence in not keeping a lookout, as there was a duty upon him, while in the driveway for the use of wagons. Hitz v. Railroad, 152 Mo.App. 687; Hight v. Bakery Co., 168 Mo.App. 431. (3) The court committed error in excluding the defendant's photographs marked Exhibits 1, 2, 3, 4, 5 and 6. These photographs are shown by the evidence to correctly represent the situation at the point of the accident at the time that it occurred, and should have been admitted in evidence for the proper instruction of the jury as to the place of the accident. 1 Wigmore on Evidence, p. 899; Dederichs v. Railroad, 14 Utah 137; People v. Buddensieck, 103 N.Y. 487; Smith v. Railroad, 80 Vt. 208; Threlkeld v. Railroad, 68 Mo.App. 127; Dean v. Railroad, 229 Mo. 446; Davidson v. Railroad, 164 Mo.App. 701. (4) The court committed error in admitting the evidence over the objection of defendant that the defendant's driver could have delivered the freight on his wagon intended for the Big Four and Vandalia Railroads to other places than through the central driveway. (5) The court committed error in giving the instruction for the plaintiff numbered 1. This instruction authorizes a recovery if the driver did not use ordinary care. The petition counts on specific acts of negligence while this instruction authorizes a recovery on general negligence. Barnett v. Paper Mill Co. 149 Mo.App. 498; Clark v. Motor Co., 177 Mo.App. 623; Davidson v. St. Louis Transit Co., 211 Mo. 320; McCarthy v. Rood Hotel Co., 114 Mo. 397; 6 Thompson on Negligence (1905), sec. 7452, p. 493; Crone v. Oil Co., 176 Mo.App. 344.

George V. Reynolds for respondent.

(1) Werremeyer saw Lauff, or could have seen him by the exercise of ordinary care in time to have prevented the accident; it was therefore culpable negligence for him to fail to do so. Gulick v. Clark, 51 Mo.App. 26. One who drives a vehicle through a crowded thoroughfare in a city is under the duty of being constantly watchful to avoid collisions with persons lawfully on the streets. (2) The rule of law as to the degree of care and the duties of footmen and the drivers of vehicles is, that it must be such care as would be ordinarily taken by prudent persons similarly situated. Jennings v. Schwab, 64 Mo.App. 13; Dieter v. Zbaren, 81 Mo.App. 612. This is what plaintiff's instructions told the jury. (3) Driving a team of horses at a rapid gait into a narrow space where people are standing in plain view of the driver is prima-facie evidence of negligence and the statement of such negligence is a specification of acts of negligence. Thompson v. Livery Co., 214 Mo. 487. Where a driver of one of defendant's wagons hitched his horses thereto and, without looking to see whether any one was in a position of danger, and without warning, started the team and ran over plaintiff, a coemployee who was working beside the wagon with one of his legs extending in front of the back wheel, negligence in the employer was shown sufficient to warrant a recovery. Tayng v. Mount Shasta Mineral Spring Co., 135 Cal. 141. (4) Photographs are recognized as legitimate evidence, but, of course, there must be something aliunde to show that they are photographs of the place. Baustian v. Young, 152 Mo. 317; Gear v. Lumber Co., 134 Mo. 85; Hunes v. McDermott, 82 N.Y. 41. They do not prove themselves. Smart v. Kansas City, 91 Mo.App. 586. If they do not for any reason appear to represent the subject or the conditions existing at the time of the occurrence in controversy in such a way as to be instructive they will be rejected. 17 Cyc. 419, note 18; Harris v. Quincy, 171 Mass. 472; Verran v. Baird, 150 Mass. 141. (5) The plaintiff's instructions were proper. Prendiville v. St. Louis Transit Company, 128 Mo.App. 596.

NORTONI, J. Allen, J., concurs. Reynolds, P. J., not sitting.

OPINION

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries received through defendant's negligence. Plaintiff recovered and defendant prosecutes the appeal.

Plaintiff received his injury through defendant's wagon being backed upon him so as to crush his leg while in the act of mounting the freight platform in the depot of the St. Louis Transfer Company. It appears the St. Louis Transfer Company maintains a large freight depot in the city of St. Louis near Second street and between Biddle street on the north and Carr street on the south. The depot, though roofed overhead, is constructed so that teams and wagons may drive into and through it for the purpose of loading and unloading freight. Two large freight platforms are maintained within the depot and extend north and south from Biddle to Carr streets. One of the platforms is erected on the east side of the passageway for conveyances and the other on the west.

Plaintiff was employed, and had been for many years, by the St. Louis Transfer Company, in the occupation of handling freight on the east platform. Defendant J. Kennard & Sons Carpet Company, is engaged in the wholesale carpet business in St. Louis and frequently delivers carpets for shipment at the freight depot above described. It appears that its driver, Werremeyer, who was in charge of the team at the time plaintiff received his injury, was entirely familiar with the situation and the locus in quo, and it is to be inferred from the frequency with which he visited the place in hauling carpets that he knew the habits of the employees thereabout. It was the habit and the custom of the men employed by the Transfer Company in handling freight on the platform, to go out to lunch about noon each day and return through the passageway where wagons and teams delivered goods on and received goods from the platform. The east platform--that is, the one to which plaintiff was in the act of mounting at the time of his injury--was about five feet in height, and it was the custom of wagons to back up against it either to receive or discharge freight thereon.

It appears plaintiff was returning from his lunch and, entering the wide passageway about 12.45 o'clock p. m., passed defendant's wagon as it was driving into the depot with a load of carpets. On passing defendant's wagon, plaintiff spoke to Werremeyer, the driver, and Werremeyer spoke to him in return, and it is said defendant's wagon was still moving at the time. Defendant's wagon was laden with rolls of carpet for shipment and to be delivered on the east platform at the entrance of the Vandalia and Big Four railroads, for it appears these two carriers occupied the same or adjoining, space at the depot. However, it does not appear that plaintiff knew the destiny of the goods on the wagon or just where they were to be unloaded. The evidence on the part of plaintiffs tends to prove that there were two other heavy stake wagons standing adjacent to the east platform, but lengthwise along beside it so as to leave a space of about twelve feet in width between them. This space was immediately adjacent to the landing of the Vandalia and the Big Four railroads and it appears to be the very space into which defendant's wagon was destined to back to discharge its load. The "southern wagon," as referred to in the evidence, standing besides the platform was of the character known as a "stiff-tongued wagon," in that the tongue protruded horizontally directly in front, but no team was attached to it at the time. Plaintiff entered into the space, about twelve feet wide, between the two wagons, with the purpose of mounting the platform by stepping upon the stiff tongue of the "southern wagon" and was thus engaged when defendant's wagon with the load of carpets backed upon him so as to catch and crush his leg between the rear end of its wagon and the side of the platform. It appears that defendant's driver, immediately after speaking to plaintiff, turned his horses and suddenly backed the load of carpets into the open space, while plaintiff was in the act of...