McCloskey v. Koplar, No. 28476.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtEllison
Citation46 S.W.2d 557
Docket NumberNo. 28476.
Decision Date06 February 1932
PartiesEDWARD McCLOSKEY, An Infant, by LEO McCLOSKEY, His Next Friend, v. HARRY KOPLAR and SAM KOPLAR, Appellants.
46 S.W.2d 557
EDWARD McCLOSKEY, An Infant, by LEO McCLOSKEY, His Next Friend,
v.
HARRY KOPLAR and SAM KOPLAR, Appellants.
No. 28476.
Supreme Court of Missouri.
Court en Banc, February 6, 1932.

[46 S.W.2d 558]

Appeal from Circuit Court of City of St. Louis.Hon. H.A. Hamilton, Judge.

REVERSED AND REMANDED.

Jones, Hocker, Sullivan & Angert and Robert L. Aronson for appellants.

(1) The doctrine of res ipsa loquitur was inapplicable to the undisputed evidence in the case. (a) The duty of appellants was to exercise ordinary care to maintain their theatre in a reasonably safe condition for the use of their patrons. Oakley v. Richards, 275 Mo. 266, 204 S.W. 505; Purdy v. Realty & Amusement Co., 294 S.W. 751; King v. Ringling, 145 Mo. App. 285; Berberet v. Electric Park Amusement Co., 35 S.W. (2d) 1025; Hollis v. Retail Merchants Assoc., 205 Mo. 508. (b) Appellants were not insurers of the safety of their patrons. Berberet v. Electric Park Amusement Co., supra. (c) Knowledge of a defective condition cannot be legitimately proven by mere inference. (d) An inference cannot be based upon an inference to establish liability. 45 C.J. 1146; Menteer v. Fruit Co., 240 Mo. 177; Katz v. Development Co., 215 Mo. App. 662, 255 S.W. 752; Weber v. Milling Co., 242 S.W. 985; Sexton v. St. Ry. Co., 245 Mo. 254; Yarnell v. Railway Co., 113 Mo. 580; Trotter v. Railway Co., 122 Mo. App. 415; Kelley v. W.D. Quimby Co., 227 Mass. 93, 116 N.E. 409. (2) A finding of the necessary element of knowledge should have been required in the instruction. Cases supra; Flanagan v. Goldberg, 137 App. Div. 92, 122 N.Y. Supp. 205. (3) The burden of proof placed upon appellants by Instruction 1 was far greater than that required and justified by the law, and appellants should have been declared to be entitled to judgment if their countervailing evidence equalized the presumption of negligence relied on by respondent. Brown v. Light, Power & Ice Co., 109 S.W. 1032; Watson v. Railroad Co., 221 Mo. App. 621, 287 S.W. 813; Lyman v. Knickerbocker, 5 Fed. (2d) 538; Flanagan v. Goldberg, supra.

Mark D. Eagleton, Everett J. Hulliverson and Hensley, Allen & Marsalek for respondent.

(1) The court did not err in giving plaintiff's Instruction 1. (a) The plaintiff was not, upon the evidence, committed to the theory that when the radiator fell, it was standing in an unusual place, even though one of the witnesses called by him did so state. Maginnis v. Railroad, 268 Mo. 667; Phelan v. Paving Co., 227 Mo. 666; Knorpp v. Wagner, 195 Mo. 661. (b) It is obvious that the fall of the radiator was an occurrence which, in the ordinary course of affairs, would not have happened if defendant had exercised ordinary prudence in its care and management. This is true whether or not it was standing in its usual place when it fell, and therefore the res ipsa loquitur doctrine was applicable. Myers v. City of Independence (Mo.), 189 S.W. 822; Jackson v. Butler, 249 Mo. 360; Dougherty v. Railway, 9 Mo. App. 478; Gallagher v. Illuminating Co., 72 Mo. App. 579; Sackewitz v. Biscuit Co., 78 Mo. App. 144; Johnson v. Ry. Co., 104 Mo. App. 588; Scharff v. Const. Co., 115 Mo. App. 167; Duffy v. McGee, 196 Mo. App. 395; Copithorne v. Hardy, 173 Mass. 400; Garham v. Gross, 162 Mass. 331; Uggla v. Ry. Co., 160 Mass. 351; Duncan v. Y.M.C.A., 176 App. Div. 672, 163 N.Y. Supp. 945; Scott v. Wingenberg, 26 Ohio Cir. Ct. (N.S.) 1; Briggs v. Oliver, 4 Hurl. & Colt. 403, 35 L.J. (Exch.) 163; Klitzke v. Webb, 120 Wis. 254. (c) The control referred to in the res ipsa loquitur rule means the right of control, and, like any other fact, may be found by the jury from the circumstances. Van Horn v. Refining Co., 27 Cal. App. 109; Jones v. Bridge Co., 70 W. Va. 374. (d) That defendants' witnesses testified to facts which, if believed by the jury, tended to exculpate defendants from the presumption of negligence arising from the plaintiff's testimony, did not require plaintiff to alter the usual form of instruction in res ipsa loquitur cases, by excluding such defensive matter. Warren v. Tel. Co. (Mo. App.), 196 S.W. 1033; Price v. Railroad, 220 Mo. 435; Bond v. Railroad Co. (Mo. Sup.), 288 S.W. 777; Blanton v. Dold, 109 Mo. 104; Gannon v. Gas. Co., 145 Mo. 502; Schmidt v. Stern & Morris, 196 N.Y. Supp. 727, 119 Misc. 529; Stroud v. Booth Cold Storage Co., 285 S.W. 165; Gannon v. Gas Co., 145 Mo. 1.

ELLISON, J.


Action for damages for personal injuries. A radiator which had been detached from the heating system in the defendants' moving picture theater and left standing in an aisle against the wall, tipped over and broke the plaintiff's leg. He was twelve years old at the time. The jury's verdict was for $15,000. After enforced remittitur in the circuit court judgment was entered for $11,000, but the defendants nevertheless have appealed. The errors assigned are that the evidence did not make a case under the res ipsa loquitur doctrine, that the respondent's instructions are faulty, and the judgment still too large.

For the purposes of this appeal, at least, it is admitted the petition states a res ipsa loquitur case. After averring the appellants were engaged in operating the theater and had invited the public to patronize the same, and that respondent had, pursuant to said invitation, paid the admission charge and became a patron, the pleading alleges "that while he was passing along an aisle or passageway in the balcony of said theater a heavy radiator adjacent thereto fell over and upon and against him, injuring him as hereinafter stated; that said radiator was at all times in the possession and control of defendants, and overturned as aforesaid as a direct and proximate result of the negligence and carelessness of defendants, directly thereby causing" various specified injuries to the plaintiff's leg and ankle, etc. The answer was a general denial.

The radiator was of cast iron, weighed about 200 pounds and in shape was tall and narrow. It rested on a level cement floor on four short legs and when in position as a part of the heating system stood in a recess or wooden frame against the north wall at the northeast corner of the balcony. Above the radiator in the same frame was a ventilating fan. An iron pipe conducting the heating medium, steam or hot water or whatever it was, projected up through the cement floor and was attached to the radiator by a screw coupler or union. Another pipe, apparently, led off from the radiator. All this is shown by the evidence for appellants in connection with a photograph which they introduced and have brought up with the record.

At the time of the accident the radiator had been uncoupled from the pipes and moved out of the frame to a position against the east wall at right angles to and a few feet south of its former location. Thus placed it was parallel with and three or four feet back of the last seat in the balcony, with an open space or aisle of that width in between. When and by whom the shift was made is a disputed question. A week before the injury a heating company had been overhauling the radiators in the theatre, and after

46 S.W.2d 559

the accident the radiators downstairs were found to be disconnected. There was testimony from one witness for respondent that he had seen the radiator which figures in this case standing by the east wall a week before the accident. Another witness, who was an usher at the theater "and helping the manager around about different little things," said he saw the radiator standing inside the frame Christmas week, but it was loose and wabbled when he leaned against it. On New Year's night, three days before the accident, he saw it again. That time it had been moved and was by the east wall. The picture machine operator, who had continued in that employment from the time of the accident to the time of the trial, testified he saw the radiator standing by the east wall four or five days before the respondent was injured.

Various witnesses for appellants connected with the theater gave testimony tending to show the radiator had been in its proper position in the frame underneath the ventilating fan at all times when they observed it, one saying as late as 6:30 the evening of January 4, which was less than an hour before the accident. The manager said he gave no orders for its removal, and told of overhearing an unknown eyewitness say just after the occurrence that some boys had dragged the radiator out and used it for a seat. But while there is conflict in the testimony as to when the radiator was moved and no showing except the vague hearsay evidence aforesaid as to who did it, yet the fact is clearly established by the evidence for both parties that the radiator was standing loose and disconnected in an unusual location against the east wall when it tipped over and injured the respondent.

The respondent was hurt about 7:30 P.M. He and a companion, Alfred Beste, were attending the picture show. After they had been there nearly an hour, finding "it was kind of stuffy and hot," they went to the back of the balcony by the ventilating fan to cool off. There were ten or a dozen people in the cross-aisle along the east wall, but none at the north end where the fan was. The two boys remained there about five minutes and started to return to their seats. Beste was a step or two ahead and passed the radiator without mishap, but it fell forward in the aisle as the respondent went by and pinned him to the floor, breaking his left leg. The fall was not explained by any witness. The respondent said he was three feet from the radiator when it tipped over; that no other person was near; that he hadn't been sitting on it, and was not aware of having bumped it or touched it. Beste's evidence was the same.

I. The appellants' first assignment of error is that the evidence did not warrant the submission of the case on Res Ipsa the res ipsa loquitur theory. As a basis for that Loquitur. contention two propositions of law are...

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139 practice notes
  • Copher v. Barbee, Nos. 8104
    • United States
    • Court of Appeal of Missouri (US)
    • October 1, 1962
    ...Safeway's appeal. Numerous Missouri cases 3 have adopted and followed the definitive statement in McCloskey v. Koplar, 329 Mo. 527, 533, 46 S.W.2d 557, 559, 92 A.L.R. 641, that 'the doctrine res ipsa loquitur does not apply except when (a) the occurrence resulting in injury was such as does......
  • Fellows v. Farmer, No. 8245
    • United States
    • Court of Appeal of Missouri (US)
    • May 5, 1964
    ...S.W.2d 662, 665(4); Cruce v. Gulf, Mobile & Ohio R. Co., 358 Mo. 589, 595, 216 S.W.2d 78, 81(6); McCloskey v. Koplar, 329 Mo. 527, 533, 46 S.W.2d 557, 559, 92 A.L.R. 2 See Lindsey v. Williams, Mo., 260 S.W.2d 472, 474(1), certiorari denied 347 U.S. 904, 74 S.Ct. 428, 98 L.Ed. 1063; Dodson v......
  • Maxie v. Gulf Mobile & Ohio R.R. Co., No. 40231.
    • United States
    • United States State Supreme Court of Missouri
    • June 9, 1947
    ...burden on defendant to prove that it was not negligent. Sweeney v. Erving, 228 U.S. 233, 57 L. Ed. 815; McCloskey v. Koplar, 329 Mo. 527, 46 S.W. 2d 557. (8) The court erred in giving Instruction 3. This instruction is erroneous because it submitted the case on the doctrine res ipsa loquitu......
  • Whitney v. Northwest Greyhound Lines, No. 9024
    • United States
    • Montana United States State Supreme Court of Montana
    • March 15, 1952
    ...857, and note 865; Gray v. Baltimore & O. R. Co., 7 Cir., 24 F.2d 671, 59 A.L.R. 461, and note 468; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641, and note The Objections to Instruction No. 20 are without Merit. The foregoing authorities clearly demonstrate the want of meri......
  • Request a trial to view additional results
139 cases
  • Copher v. Barbee, Nos. 8104
    • United States
    • Court of Appeal of Missouri (US)
    • October 1, 1962
    ...Safeway's appeal. Numerous Missouri cases 3 have adopted and followed the definitive statement in McCloskey v. Koplar, 329 Mo. 527, 533, 46 S.W.2d 557, 559, 92 A.L.R. 641, that 'the doctrine res ipsa loquitur does not apply except when (a) the occurrence resulting in injury was such as does......
  • Fellows v. Farmer, No. 8245
    • United States
    • Court of Appeal of Missouri (US)
    • May 5, 1964
    ...S.W.2d 662, 665(4); Cruce v. Gulf, Mobile & Ohio R. Co., 358 Mo. 589, 595, 216 S.W.2d 78, 81(6); McCloskey v. Koplar, 329 Mo. 527, 533, 46 S.W.2d 557, 559, 92 A.L.R. 2 See Lindsey v. Williams, Mo., 260 S.W.2d 472, 474(1), certiorari denied 347 U.S. 904, 74 S.Ct. 428, 98 L.Ed. 1063; Dodson v......
  • Maxie v. Gulf Mobile & Ohio R.R. Co., No. 40231.
    • United States
    • United States State Supreme Court of Missouri
    • June 9, 1947
    ...burden on defendant to prove that it was not negligent. Sweeney v. Erving, 228 U.S. 233, 57 L. Ed. 815; McCloskey v. Koplar, 329 Mo. 527, 46 S.W. 2d 557. (8) The court erred in giving Instruction 3. This instruction is erroneous because it submitted the case on the doctrine res ipsa loquitu......
  • Whitney v. Northwest Greyhound Lines, No. 9024
    • United States
    • Montana United States State Supreme Court of Montana
    • March 15, 1952
    ...857, and note 865; Gray v. Baltimore & O. R. Co., 7 Cir., 24 F.2d 671, 59 A.L.R. 461, and note 468; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641, and note The Objections to Instruction No. 20 are without Merit. The foregoing authorities clearly demonstrate the want of meri......
  • Request a trial to view additional results

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