O'Malley v. City of St. Louis

• Decision Date: 17 September 1938
• Docket Number: 35205
• Citation: 119 S.W.2d 785,343 Mo. 14
• Parties: Katherine O'Malley v. City of St. Louis, Appellant
• Court: Missouri Supreme Court

119 S.W.2d 785

343 Mo. 14

Katherine O'Malley v. City of St. Louis, Appellant

No. 35205

Supreme Court of Missouri

September 17, 1938

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge;

Reversed and remanded (with directions).

A A. Alexander and T. J. Crowder for appellant.

(1) Instruction 4, given at the request of the defendant, is correct in form and substance. It informs the jury that the defendant was not the insurer of plaintiff's safety; and that the burden of proof rested upon the plaintiff to prove to the reasonable satisfaction of the jury the negligence charged in her petition. This is a correct statement of the law applicable to the issues joined in the pleadings. Achter v. Sears, Roebuck & Co., 105 S.W.2d 959; Evans v. Sears, Roebuck & Co., 104 S.W.2d 1035; Rath v. Knight, 55 S.W.2d 682; Cash v Sonken-Galamba Co., 17 S.W.2d 927; Voght v Wurmb, 300 S.W. 278; Stolovey v. Fleming, 8 S.W.2d 832. (2) Instruction 5, given at the request of the defendant, is correct in form and substance. It requires the plaintiff to show by the preponderance of the evidence every fact necessary to a verdict in her favor, except on the issue of contributory negligence, with respect to which issue the burden rests upon the defendant. The instruction also defines the term "burden of proof." This instruction is the correct statement of the law on the issues joined and submitted to the jury in other instructions. Dietz v. Magill, 104 S.W.2d 707; Bleil v. Kansas City, 70 S.W.2d 913; Rath v. Knight, 55 S.W.2d 682; Hicks v. Vieths, 46 S.W.2d 604; Stolovey v. Fleming, 8 S.W.2d 832; Denkman v. Prudential Fixture Co., 289 S.W. 591; Malone v. Franke, 274 S.W. 369. (3) Instruction 6, given at the request of the defendant, is a correct instruction on contributory negligence. The instruction hypothesizes the acts of negligence pleaded in defendant's answer, and requires the jury to find, first, that the plaintiff was guilty of the acts or omissions charged; second, that such acts constituted negligence; and, third, that such negligence directly caused or contributed to the injuries complained of. Anderson v. Northrop, 96 S.W.2d 521; Carr v. St. Joseph, 225 S.W. 922; Barrett v. Canton, 93 S.W.2d 927; Mahaney v. K. C., Clay Co., & St. J. Auto Transit Co., 46 S.W.2d 817; Ward v. Portageville, 106 S.W.2d 497; Lodins v. St. Louis, 90 S.W.2d 431. (4) Instruction 7, given at the request of the defendant, is correct in form and substance, and is a correct statement of the law under the issues joined in the pleadings and submitted to the jury under other instructions. It informs the jury that the negligence charged in plaintiff's petition is not to be presumed, and that plaintiff is not entitled to recover unless the charge of negligence submitted is sustained by the greater weight of the credible evidence. Doherty v. St. Louis Butter Co., 98 S.W.2d 742. (5) The court erred in refusing to give defendant's requested instructions in the nature of a demurrer to the evidence at the conclusion of the evidence in plaintiff's case, and at the conclusion of all the evidence in the whole case, for the following reasons: (a) The evidence wholly fails to show that the defendant failed to exercise ordinary care to keep the premises, and the floor space where plaintiff fell, in a reasonably safe condition for the use of persons exercising ordinary care for their own safety. The condition of the floor was reasonably safe. Gilliland v. Bondurant, 232 Mo. 881, 59 S.W.2d 679; Evans v. Sears, Roebuck & Co., 104 S.W.2d 1035; Achter v. Sears, Roebuck & Co., 105 S.W.2d 959; Cox v. Bondurant, 7 S.W.2d 403; Voght v. Wurmb, 300 S.W. 278; Cluett v. Union Elec. L. & P. Co., 220 S.W. 865; Oakley v. Richards, 275 Mo. 266, 204 S.W. 505; Ilgenfritz v. Mo. P. & L. Co., 101 S.W.2d 723. (b) The undisputed evidence shows that the condition of the floor where plaintiff fell was not in an unsafe and dangerous condition, but was in a reasonably safe condition for the use of persons exercising ordinary care for their own safety. An elevation of half an inch in a floor is not a dangerous and unsafe condition. Maxwell v. Kansas City, 52 S.W.2d 487; Lundahl v. Kansas City, 209 S.W. 564; Ward v. Portageville, 106 S.W.2d 497; Ray v. Poplar Bluff, 102 S.W.2d 814; Dewey v. Kline's, Inc., 86 S.W.2d 622. (c) Plaintiff's petition alleges that the defendant knew, or by the exercise of ordinary care, could have known that the condition of the floor where plaintiff fell was dangerous and unsafe. There is no evidence that the defendant did know or could have known that the condition of the floor was a dangerous condition, but on the other hand the undisputed evidence shows that the condition was not dangerous. In the absence of evidence of defendant's knowledge that the condition was dangerous, plaintiff cannot recover, and the demurrer for this reason should have been sustained. Long v. Woolworth Co., 109 S.W.2d 85. (d) There is no substantial evidence to sustain a verdict in plaintiff's favor, and since the case should not have been submitted to the jury, errors, if any, in instructing the jury for defendant would not prejudice the substantial rights of the plaintiff,a nd would not call for a new trial, and in this case the order and judgment of the court granting a new trial should be reversed. Bello v. Stuever, 44 S.W.2d 927; Barr v. Mo. Pac. Ry. Co., 37 S.W.2d 927; Peetz Bros. Livery & Undertaking Co. v. Vahlkamp, 11 S.W.2d 26; Phillips v. Pulitzer Pub. Co., 238 S.W. 127; Trainer v. Sphalerite Mining Co., 243 Mo. 359; O'Dell v. Am. Natl. Ins. Co., 107 S.W.2d 108; Fitzjohn v. St. Louis Transit Co., 183 Mo. 74; Ordelheide v. Berger Land Co., 208 Mo. 239. (e) The negligence of the owner of the premises must be predicated upon what should have been anticipated by the owner, and not merely upon what happened. In this case there was nothing about the condition of the floor where plaintiff fell that would lead the defendant to anticipate that the plaintiff would likely fall and be injured if she was exercising ordinary care for her own safety. Ilgenfritz v. Mo. P. & L. Co., 101 S.W.2d 723; McCollum v. Winnwood Amusement Co., 59 S.W.2d 693; Cluett v. Union Elec. L. & P. Co., 220 S.W. 865; Oakley v. Richards, 204 S.W. 505, 275 Mo. 266; Mattingly v. Broderick, 36 S.W.2d 415.

Taylor, Mayer & Shifrin and Herman Goralnik for respondent.

(1) This court should not interfere with the ruling of the trial court granting plaintiff a new trial, since such ruling was within the trial court's discretion and based on good and sufficient grounds. Ittner v. Hughes, 133 Mo. 679 34 S.W. 1110; Tappmeyer v. Ryckoff, 45 S.W.2d 890. (2) Instruction 4, given at the request of defendant, is erroneous and misleading in directing the jury that ". . . the burden rests upon the plaintiff to prove to your reasonable satisfaction by all the credible evidence in this case the charges of negligence . . ." All that the law requires is that plaintiff prove her case by a preponderance of the credible evidence. This error is prejudicial and harmful. Nelson v. Evans, 338 Mo. 997, 93 S.W.2d 695; Aly v. Term. Railroad Assn., 336 Mo. 340, 78 S.W.2d 855. (3) Instruction 5, given at the request of defendant, is erroneous and misleading in directing the jury that "Therefore, if the evidence on the issues of facts necessary to a verdict in favor of plaintiff is evenly balanced, or if the evidence does not preponderate in favor of the plaintiff, then you cannot find for the plaintiff and your verdict must be for the defendant." This, erroneously, places upon plaintiff the burden of disproving the issue of contributory negligence, and is prejudicial and harmful, requiring a new trial. Chaar v. McLoon, 304 Mo. 250, 263 S.W. 177; Szuch v. Ni Sun Lines, 332 Mo. 476, 58 S.W.2d 473; Clark v. A. & E. Bridge Co., 324 Mo. 565, 24 S.W.2d 153; Brewer v. Silverstein, 64 S.W.2d 291; Raymen v. Galvin, 229 S.W. 749; Manar v. Taetz, 109 S.W.2d 723; Rouchne v. Gamble Const. Co., 89 S.W.2d 63; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557. (4) The errors in instructions 4, 5 and 7, given at the request of defendant, are not cured by the declarations in the first paragraph of Instruction 5, nor by parts of 7, given on behalf of defendant, because the errors in 4, 5 and 7 consist of positive misstatements of the law which conflict with and are contradictory to the other instructions. Where conflicting instructions are given, one being correct and the other erroneous, reversible error is committed in those cases where the erroneous instruction is given at the request of the prevailing party. State ex rel. St. Joseph Belt Ry. v. Shaw, 108 S.W.2d 355; State ex rel. State Highway Comm. v. Blobeck Inv. Co., 63 S.W.2d 448; McCloskey v. Renne, 225 Mo.App. 810, 37 S.W.2d 950; Gray v. Nations, 224 Mo.App. 27, 23 S.W.2d 1080; Miners Merchants Bank v. Richards, 273 S.W. 415. (5) Instructions 4, 5 and 7, given at the request of defendant, directed the jury concerning the burden of proof imposed upon the plaintiff, and alluded to such burden carried by plaintiff in five declarations. Such repetition concerning the burden of proof repeated in different instructions, as well as in the same instruction, unduly and harmfully emphasizes the law relating to the burden of proof, and is calculated to confuse and mislead the jury. Such error is prejudicial and requires a new trial. Miller v. Williams, 76 S.W.2d 357; Wolfson v. Cohen, 55 S.W.2d 677; Fantroy v. Schirmer, 296 S.W. 235; Reeves v. Lutz, 191 Mo.App. 550, 177 S.W. 764; Johnson v. Springfield Traction Co., 176 Mo.App. 174, 161 S.W. 1193; Mitchell v. Dyer, 57 S.W.2d 1082; Rouchne v. Gamble Const. Co., 89 S.W.2d 63. (6) This instruction presupposes and imposes upon the plaintiff the duty of looking and watching for defects in...