Mann v. Pulliam
Decision Date | 20 April 1939 |
Docket Number | No. 35201.,35201. |
Parties | ETTA MANN, Appellant, v. ALONZO L. PULLIAM and RUBY PULLIAM. |
Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis. — Hon. Arthur H. Bader, Judge.
AFFIRMED.
Brownrigg & Muldoon and Douglas W. Robert for appellant.
It was error to give to the jury Instruction 5, which tells them that they must find for the defendant if there is any doubt in their minds as to the preponderance of evidence, or if they were unable to determine whether or not the defendant was guilty of negligence. It is the function and duty of the jury to determine this question. Nelson v. Evans, 93 S.W. (2d) 691; Payne v. Reed, 332 Mo. 342; Aly v. Terminal Railroad, 336 Mo. 340; Sheehan v. Terminal Railroad, 336 Mo. 709; Collins v. Beckman, 79 S.W. (2d) 1052; Werminghaus v. Eberle, 81 S.W. (2d) 607; Dempsey v. Horton, 337 Mo. 379; Koebel v. Tieman Coal Co., 337 Mo. 561; Grimes v. Red Line S. Co., 337 Mo. 743; Timper v. Mo. Pac. Ry., 98 S.W. (2d) 548; Brooks v. Roberts, 281 Mo. 558.
Joseph N. Hassett and Ernest E. Baker for respondents.
The verdict and judgment in this case are for the right party and should not be reversed, because: There was no substantial evidence in the record from which the jury could find against defendants under the instructions, and the evidence failed to support the allegations of plaintiff's petition. Milliken v. Thyson Comm. Co., 202 Mo. 637; Hyde v. Mo. Pac. Ry. Co., 110 Mo. 272; Joslin v. Chicago, M. & St. P. Ry. Co., 319 Mo. 270, 3 S.W. (2d) 352; State ex rel. Central Coal & Coke Co. v. Ellison, 195 S.W. 722; Kirn v. Harvey, 208 S.W. 479. Plaintiff's petition fails to allege facts constituting actionable negligence against defendants, and the facts the jury were required to find under plaintiff's instructions directing a verdict for plaintiff do not constitute actionable negligence and the proof does not establish any actionable negligence on the part of defendants. Wecker v. Grafeman-McIntosh Ice C. Co., 31 S.W. (2d) 974; Eyre v. Jordan, 111 Mo. 424; Peck v. Yale Amus. Co., 195 S.W. 1033.
Appellant, Etta Mann, filed this suit against respondents to recover $8,000 in damages for personal injuries alleged to have been sustained when she fell while descending steps in front of the home of respondents. A jury returned a verdict for respondents and appellant appealed.
The only points briefed by appellant concerned the correctness of the instructions given by the trial court at respondents' request. Respondents contend that the instructions conformed to the law, but they also argue that the evidence was insufficient to have supported a verdict for plaintiff, hence, if any instructions were erroneous they were harmless. Appellant and a Mr. and Mrs. Harting, on invitation of respondents, spent the afternoon and evening of the day the accident occurred at respondents' home. It was purely a social visit. The visitors started to leave for their homes at about 10:30 P.M. Appellant in her brief stated the facts as follows:
[1] The sole issue on the question of liability is whether the respondents can be adjudged guilty of negligence in maintaining the steps and walk as described in the evidence, that is, having the five wooden steps painted gray and the lower step and walk of concrete material a natural color, or unpainted, leaving the lower step and walk a different color than that of the five upper steps.
We are of the opinion that this state of facts did not prove actionable negligence. In 45 Corpus Juris, 632, section 2, we find the following quotation taken from Grein v. Yohon, 103 Misc. 378,...
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