De Maet v. Fidelity Storage, Packing & Moving Co.

• Decision Date: 16 October 1906
• Citation: 121 Mo. App. 92,96 S.W. 1045
• Court: Missouri Court of Appeals
• Parties: DE MAET v. FIDELITY STORAGE, PACKING & MOVING CO.

96 S.W. 1045

121 Mo. App. 92

DE MAET v. FIDELITY STORAGE, PACKING & MOVING CO.

St. Louis Court of Appeals. Missouri.

October 16, 1906.

1. APPEAL—EVIDENCE—REVIEW.

Where, at the close of plaintiff's case, defendant offered an instruction in the nature of a demurrer to the evidence which was overruled, and at the close of the whole case defendant asked an instruction that the jury be directed to find for defendant, which was likewise overruled and exception duly taken, the sufficiency of the evidence taken as a whole to sustain a verdict for plaintiff was presented for review on appeal.

2. EVIDENCE—WEIGHT AND SUFFICIENCY.

Where plaintiff's own evidence demonstrates that the alleged fact on which he predicates a right of action could not exist, it cannot be said that the testimony of one of the witnesses that such fact did exist was any substantial evidence thereof.

3. SAME—INFERENCES.

In an action for death, the mere concurrence in point of time of the supposed alleged injury, and the fact that deceased took to her bed and died shortly thereafter, did not legitimately give rise to the inference that the death was the result of the injury.

4. HIGHWAYS — INJURIES TO PEDESTRIANS — EVIDENCE.

In an action for death of plaintiff's intestate, evidence held insufficient to warrant a finding that she was struck in the left side by the end of the shaft of a buggy driven by defendant's servant, or that her death was the proximate result of injuries so received, and not from natural causes.

Goode, J., dissenting.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

Action by Peter De Maet against the

Fidelity Storage, Packing & Moving Company. From a judgment for plaintiff, defendant appeals. Reversed.

Jeptha D. Howe, for appellant. John A. Talty, for respondent.

TITTMAN, Special Judge.

After stating that defendant is a corporation, organized under the laws of this state, that Morgan street and Broadway were, and are, open public thoroughfares in the city of St. Louis, that plaintiff was lawfully wedded to Predentia De Maet, on April 5, 1887, and continued to live with her as her husband until the date of her death, the petition alleges: "Plaintiff further states that on or about the 4th day of May, 1903, while plaintiff's said wife, Predentia De Maet, was walking in a southwardly direction across said Morgan street on, or near, the crossing on the west line of said Broadway, one, defendant's agent, servant and employé in charge of and driving its horse and buggy, carelessly, negligently and unlawfully drove said horse and buggy against and upon said Predentia De Maet, with such force as to throw her violently to the ground, causing a great and sudden shock to her nervous system, and cutting, bruising, wounding and seriously internally injuring the said Predentia De Maet, causing her to become sick and sore, and from the effects of which she finally on or about the 20th day of May, 1903, died. Plaintiff further states that Predentia De Maet was at all of said times in the exercise of ordinary care, and that her death was caused by defendant's said servant's negligent, careless and unlawful acts in driving said horse and buggy against and upon her and causing the said injuries as aforesaid." Then follow allegations of damages and prayer for judgment. The answer to the petition is as follows: "Now comes the defendant, and, for its answer to plaintiff's petition herein, denies each and every allegation therein made and contained. Further answering, defendant says that, if Predentia De Maet sustained any injuries, they were directly and proximately caused by her own carelessness and negligence, in that she carelessly and negligently walked into and against said horse, without paying the slightest attention to where she was going. Further answering, defendant says that the cause of the death of Predentia De Maet was due to fat and enlarged thyroid gland and degeneration of the heart, liver and kidneys, and many other natural causes contributed thereto, and not as alleged. Wherefore, having fully answered, defendant asks to be hence discharged, with its costs." A reply was filed, denying the new matter in the answer. "A trial before a jury resulted in a verdict and judgment thereon, for the plaintiff, from which, after an unsuccessful motion for a new trial, the defendant appealed to this court.

At the close of the plaintiff's case, the defendant offered an instruction in the nature of a demurrer to the evidence, which was overruled. An instruction offered at the close of the whole case, to find for the defendant, was likewise overruled. Defendant having duly preserved the point, it becomes necessary to review the evidence taken as a whole. Hilz v. Railroad, 101 Mo. 36, 13 S. W. 946; Weber v. Railroad, 100 Mo. 194, 12 S. W. 804, 13 S. W. 587, 7 L. R. A. 819, 18 Am. St. Rep. 541; Hite v. Railroad, 130 Mo., loc. cit. 141, 31 S. W. 262, 32 S. W. 33, 51 Am. St. Rep. 555.

The evidence for the plaintiff tends to show that the deceased was 41 years of age, and up to May 4, 1903, was apparently a strong, healthy woman, the mother of eight children (four living and four dead); that on May 4th she, with a basket on her arm, accompanied by her eleven year old daughter, stepped off the sidewalk on Morgan street, in the city of St. Louis, onto the pavement where Morgan street intersects Broadway, and was struck in the left side by the end of a buggy shaft, knocked down, and injured; that she and her daughter were then taken into the buggy by the driver and driven south to Market street, where they took a street car and went to their home in South St. Louis. The plaintiff testified that when he went home on May 4th, after his day's work was done, he found his wife in bed, "wrong in her mind," unable to give any account of the accident; that she continued in this condition, and on May 16, 1903, he had her taken to St. Anthony's Hospital at Chippewa street and Grand avenue, where she died on May 19th; that, before being sent to the hospital, she was treated for her injuries by Dr. Collasowitz. Louis Margulis, the only witness in the case who gave any testimony tending to show that the deceased was run into or struck by defendant's buggy, testified that, at the time of the accident, he was sitting on a truck in the front of a store, across the street, on the northeast corner of Broadway and Morgan streets, from which point he saw the accident; that, when deceased stepped out a few feet from the north curb on Morgan street, the buggy came around the corner going west on a full trot, and the end of the right shaft of the buggy struck her on her left side, and she fell down on her hands and face "all crouched up," and the buggy had to be backed to get her out; that the buggy was a storm buggy, with all the curtains down except the front one, and was coming from the north on Broadway at a brisk trot. This witness confessed that he signed the following statement: "St. Louis, Mo., June 22, 1903. I, William Louis Margulis, state before Officer Dineen that I witnessed accident at northwest corner of Broadway and Morgan on May 4th, 1903, at 11 or 11:15 a. m., and I witnessed buggy stop for street car going south on Broadway, then started west on Morgan. Saw lady run into front wheel of buggy and fall down, apparently by her own carelessness. Louis Margulis." But, in explanation, witness said he did not read the statement, and signed it at the request of a police officer, for the protection of the officer. Two police officers present when he signed the statement testified that he read it and knew its contents when he signed it. Lawrence A. Steinberger testified that he did not see the accident, but heard the deceased scream, and looked and saw her down under the wheel of the buggy; that the wheel was not on her, but she was down under the wheel, "doubled up, more on her right than on her left side, and with her face downward"; that the driver backed the buggy, and she was assisted to her feet and into the buggy, and she and her daughter were taken away by the driver. Emma De Maet, the daughter, testified that her mother was ahead of her, and, when they came to the corner of Morgan street and Broadway, as her mother was walking across the street, a buggy came along at a fast trot and knocked her down "by the wheel"; that some men picked her up, and the driver took them to Market street, gave her mother a dime, and they got on the street car and went home, and her mother went to bed; that her mother did not talk to her at all on the way home. On cross-examination, witness stated that she did not see the buggy before it came in contact with her mother, and could not tell whether her mother walked into the buggy, or the buggy ran into her; that she was looking at the fish market, and the first she noticed her mother was down; that they were going to take a car and go home, and were trying to catch a car that had just passed. Edwin E. Goebel, the attorney who brought the suit but afterwards withdrew from it, testified that he sent for Charles F. Betts, president of the defendant company, to come to his office, and, in a conversation had there with Mr. Betts, the latter stated that Lawler, the driver of the buggy, was in the employ of the company on May 4, 1903, and had been up in North St. Louis on that day, taking orders and giving bids to people for the storage of their goods, and was on his way west on Morgan street when the accident happened, and that the horse and buggy belonged to the company. Dr. Collasowitz testified that he attended the deceased professionally from the 4th to the 16th of May, 1903, when she was sent to the hospital, after which he did not again see her; that, although he tried several times to have his patient sit up, she was unable to do so, but felt faint; that she could not sit up, and, if she was not supported, she fell back on her pillow; that at times she seemed to be better and at times she was...