McDonald v. Heinemann
| Decision Date | 04 June 1940 |
| Docket Number | No. 25343.,25343. |
| Citation | 141 S.W.2d 177 |
| Parties | McDONALD v. HEINEMANN. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; Peter T. Barrett, Judge.
"Not to be reported in State Reports."
Action by Charles McDonald against Elmer Heinemann, doing business as County Meat & Vegetable Company, for personal injuries. The trial resulted in a verdict for defendant, and, from an order sustaining plaintiff's motion for a new trial, defendant appeals.
Order reversed and cause remanded with directions.
Wilbur C. Schwartz, and Orville Richardson, both of St. Louis, for appellant.
J. Neal LaVelle, of St. Louis, for respondent.
BENNICK, Commissioner.
In this action plaintiff prays damages of $3,000 for personal injuries sustained by him on July 15, 1938, as the consequence of having stumbled and fallen over a penny scale which was owned by defendant and had been placed by him on the public sidewalk in front of his store in the City of Kirkwood, Missouri. The trial of the case resulted in the return of a verdict of ten jurors in favor of defendant. Thereafter the court sustained plaintiff's motion for a new trial upon four of the grounds specified in the motion; and from the order so entered, defendant's appeal to this court has followed in the usual course.
Recovery was sought in the case upon the sole theory that plaintiff's injury and damage had proximately resulted from defendant's alleged violation of the following ordinance of the City of Kirkwood:
Defendant answered by a general denial, coupled with an affirmative plea to the effect that plaintiff's injury had resulted from his own negligence directly contributing thereto in having carelessly and negligently failed and omitted to look where he was going or walking, or to pay attention to what he was doing.
Plaintiff's place of business for the sale of groceries, meats, and vegetables is located on the north side of West Argonne Avenue, in the City of Kirkwood, immediately beyond the Kirkwood Trust Company's building, which stands on the northwest corner of the intersection of Argonne Avenue with Kirkwood Road, which is the principal business street and main thoroughfare north and south through the city. Just west of defendant's store is a barber shop, and immediately west of the barber shop is plaintiff's shoe repair shop, which he had been operating for some five years at the time of the accident in question.
All the buildings mentioned front upon a concrete sidewalk, which, by actual measurement, is ten feet in width from the curb to the building line.
In March of 1938, four months before the occurrence of plaintiff's injury, defendant purchased the scale — the familiar type of upright scale upon which one may weigh himself by dropping a penny in the slot — and placed it out upon the sidewalk in front of his store, with the base of the scale resting against the wall of the building. Plaintiff's evidence disclosed that the base of the scale was seventeen inches in width, nine inches in height, and extended out upon the sidewalk for a distance of thirty-three inches, leaving a space from the outer edge of the base across to the curb of seven and a quarter feet which was available to the public in its use of the sidewalk at that particular point.
Although plaintiff, in going to and from his place of business, had admittedly had occasion to enter or pass by defendant's store several times a day during the whole of the time that the scale had been out upon the sidewalk, he testified that he had no recollection of having ever noticed or observed the scale prior to the time that he suffered the accident out of which this lawsuit has arisen.
About noon on the day in question, plaintiff left his shoe repair shop and went over to defendant's store, which he entered by the nearest door, some five or six feet to the west of the point where the scale was standing. After completing his purchases, he came out of the store by the center door, as was his usual custom, and then turned to his right towards his own place of business, in a course near the middle of the sidewalk which would take him by the scale. His eyesight was good, and, so far as he recalled, there was no one immediately in front of him who might have prevented him from seeing the scale against the wall, if his attention had been attracted to it.
While plaintiff had no distinct recollection of all the minute details leading up to the occurrence, it would seem that some one or more persons was approaching from the west on the outer half of the sidewalk, and that plaintiff moved over a little to his right to let this person or persons pass. Just then some passerby called out plaintiff's name from out in the street, and as he turned his head in the direction from which the call had come, he stumbled over the scale and fell forward upon the sidewalk, receiving the injuries, fortunately not very serious, for which he has sought to be compensated in this proceeding.
Upon being helped to his feet, plaintiff went on to his store, where, later in the afternoon, he was visited by defendant, who, having meanwhile been informed of the accident, came over to plaintiff's shop and arranged for plaintiff to receive treatment from defendant's own physician.
Some weeks later this action was instituted, resulting in a verdict for defendant, and then in the latter's appeal to this court from the order sustaining plaintiff's motion for a new trial upon the several grounds assigned.
Defendant insists, of course, that the motion should not have been sustained by the court upon either of the grounds assigned as the basis for its order.
The matter first considered by counsel for the respective parties is whether the motion was properly sustained upon the ground of error in the giving of defendant's instruction No. 5, which was the somewhat familiar form of instruction in negligence cases upon the burden and degree of proof, reciting that the charge laid by plaintiff against defendant was one of negligence; that recovery may not be had on a charge of negligence except where such charge is sustained by the preponderance or greater weight of the evidence; that it did not devolve upon defendant to disprove such charge, but rather the law cast the burden of proof in reference to said charge upon plaintiff; and that if the jury found that the evidence touching the charge of negligence against defendant did not preponderate in favor of plaintiff, then and in that event plaintiff was not entitled to recover, and their verdict should be in favor of defendant.
The objection which plaintiff makes to such instruction — and presumably the theory upon which the court concluded that the same had been erroneously given — is that it had no place in the instant case in which the sole charge was that of the violation of an ordinance constituting negligence per se, and was in conflict with plaintiff's instruction covering the whole case, which only required the jury to find the facts amounting to a violation of the ordinance, and not whether defendant was otherwise negligent in having placed the scale upon the sidewalk.
While it is no doubt true that this form of instruction is more usually found employed in an action involving a question of the defendant's nonobservance of due care under the particular circumstances of the case, it may nevertheless not be without proper application in an action such as this, which involves only the alleged violation of an ordinance setting up an arbitrary standard of care under the circumstances contemplated by the ordinance.
In such an action, no less than in one having to do with the nonobservance of due care generally, the question at issue is one of negligence, the only difference being that in the latter character of case the plaintiff must prove the negligence charged in terms of what would reasonably have been expected from a duly careful and prudent person, in which event it is for the jury to draw their own conclusion from the evidence as to whether or not the defendant was in fact negligent in the manner charged against him, whereas in the former character of case the plaintiff is only required to prove the facts constituting the violation of the ordinance, whereupon, if those facts are found to have existed, the imputation of negligence on the defendant's part arbitrarily follows without regard to what due care would have otherwise demanded. But in either instance the burden of proof is upon the plaintiff, and whatever the gravamen of his action may be, he must sustain the charge he makes against the defendant by the preponderance or greater weight of the evidence which goes to prove the essential elements of his case.
Now in this instance it was not enough for plaintiff merely to prove that defendant had placed the scale upon the sidewalk, but in order to establish a violation of the ordinance, he was required to prove that the scale had been so placed upon the sidewalk "as to obstruct or otherwise encumber the same". Such is the condition of liability fixed by the ordinance with respect to movable or portable objects which one may place, or cause to be placed, upon a sidewalk in the City of Kirkwood. Indeed, plaintiff recognized such obligation on his part in...
To continue reading
Request your trial
-
Kirst v. Clarkson Const. Co.
...Whitzel, Mo.App., 324 S.W.2d 157, 160(4); Heggeman v. St. Louis Public Service Co., Mo.App., 255 S.W.2d 99, 104(3); McDonald v. Heinemann, Mo.App., 141 S.W.2d 177, 182(8).25 Smith v. St. Louis Public Service Co., supra, 277 S.W.2d at 502(3); State ex rel. Missouri Mut. Ass'n. v. Allen, 336 ......
-
Mavrakos v. Mavrakos Candy Co.
...reviewable on appeal. Schipper v. Brashear Truck Co., 132 S.W.2d 993; Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121; McDonald v. Heinemann, 141 S.W.2d 177. (3) Even discretion was involved in the trial court's ruling, which we deny, such discretion may not be abused or arbitrarily exer......
-
Maybach v. Falstaff Brewing Corp.
...S.W.2d 158; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366; Schipper v. Brashear Truck Co., 132 S.W.2d 993, 125 A.L.R. 674; McDonald v. Heinemann, 141 S.W.2d 177; Schlemmer v. McGee, 185 S.W.2d 806; Griffith Continental Casualty Co., 299 Mo. 426, 253 S.W. 1043; Palmer v. Hygrade Water & S......
-
Bailey v. Interstate Airmotive
...a new trial will be reversed on appeal when the trial court has abused its discretion. Ullom v. Griffith, 263 S.W. 876; McDonald v. Heinemann, 141 S.W.2d 177; Heeter Boorum & Pease Loose Leaf Book Co., 237 S.W. 902; Aeolian Co. of Missouri v. Boyd, 138 S.W.2d 692. (2) The only evidence in d......