McMahon v. Joseph Greenspon's Sons Iron & Steel Co.

• Decision Date: 02 December 1924
• Docket Number: No. 18750.,18750.
• Citation: 267 S.W. 83
• Parties: McMAHON v. JOSEPH GREENSPON'S SONS IRON & STEEL CO. et al.
• Court: Missouri Court of Appeals

267 S.W. 83

McMAHON v. JOSEPH GREENSPON'S SONS IRON & STEEL CO. et al.

No. 18750.

St. Louis Court of Appeals. Missouri.

December 2, 1924.

Rehearing Denied December 17, 1924.

Appeal from St. Louis Circuit Court, George E. Mix, Judge.

"Not to be officially published."

Action by Loretta McMahon against:Joseph Greenspon's Sons Iron & Steel Company and another. From a judgment against the named defendant, it appeals. Reversed and remanded.

Case & Miller, D. W. Voyles, and G. L. Stemmler, all of St. Louis, for appellant.

McMahon & Berthold, of St. Louis, for respondent.

DAUBS, J.

This is an action for damages brought by plaintiff against defendants for personal injuries received by plaintiff on February 4, 1922. There was a verdict and judgment in favor of plaintiff, and against the defendant Greenspon's Sons Iron & Steel Company, a corporation, in the sum of $2,500. There was a direct verdict in favor of defendant Steffen. The defendant corporation appeals.

The petition charges negligence against defendants in causing and permitting a large iron beam to be and remain on a certain sidewalk in front of the property known as 2746 Cherokee street in this city, and that the defendants knew, or by the exercise of ordinary care could have known, that by leaving the beam on the sidewalk plaintiff was likely to fall over same and thereby become injured. The answer of the iron and steel company is a general denial. Defendant Steffen answered with a general denial, and charges contributory negligence against plaintiff.

The facts, as become pertinent, are as follows: Plaintiff, a pedestrian, crossed diagonally over Cherokee street in this city from the north to the south. She was accompanied by an escort, and when the pair reached the curb on the south side of the street, and after stepping upon the sidewalk, plaintiff was thrown by tripping over this iron beam and was injured.

Defendant Steffen, called as a witness for plaintiff, testified that on February 4, 1922, the date of the accident, he lived at the premises designated as 2746 Cherokee street; that on about September 1, 1921, he purchased four iron beams from the defendant corporation, hereinafter referred to as the Iron & Steel Company. The iron beam now in" question was found to be short of the specifications, and so Steffen immediately advised the Iron & Steel Company that the beam would not fit, whereupon the company, through its superintendent, advised Steffen that the company would within a few days send for same, and that the beam was not Steffen's, but belonged to the company. It appears that the Iron & Steel Company did not send for the beam, but on November 7 or 8, 1921, it gave Steffen a credit memorandum for $20, which was the amount charged against Steffen for the beam in question. On November 7, 1921, Steffen sold the lot upon which he was about to erect a building to another person. The purchaser of the lot began excavating the lot about November 16, 1921, preparatory to the erection of a building thereon. When the beam was delivered in the first instance by the Iron & Steel Company, same was deposited on the front part of the lot, and about 10 feet from the edge of the building, and not on any sidewalk or public street, and away from any street or sidewalk traffic. Steffen testified that in the latter part of November, 1921, he noticed that the beam had been removed by some one from the lot, and had been placed diagonally with the sidewalk between the curb and the cement, and that the beam remained in such position from November until February 4, 1922. Some time in April, 1922, Steffen again bought the iron beam, called an Ibeam, from the appellant, and then the witness had same removed `from the sidewalk. Witness testified that he had seen the beam lying on the sidewalk many times from November until February, and that same was not lighted and was unguarded. The beam was 22 feet long, 15 inches high; and about 6 inches in width. The stretch of ground between the sidewalk and the curb is described as being level with the curb, but about 4 or 5 inches lower than the sidewalk. The beam was resting on the narrow side, and stood 15 inches high. This witness testified that he did not know who put the beam on the sidewalk, and that neither he nor any of his men had placed it there; that while he knew a contractor was putting up a building, he did not know this contractor, nor did he know who put the beam on the sidewalk.

In the direct testimony of Steffen, and again on being recalled as a witness, plaintiff brought out the testimony that witness had over the telephone, on two occasions at least, called up the appellant and notified it that the beam was on the sidewalk and asked that same be taken away. These conversations were had with appellant's superintendent. As to when these conversations occurred with reference to February 4, 1922, it only appears in the record that when Steffen saw the beam on the sidewalk, he called appellant up and asked that same be removed. The indefiniteness of this testimony is disclosed by the following questions and answers appearing in Steffen's redirect examination:

"Q. When you saw that I-beam right out there in front of your place, what did you do?

A. I called them.

"Q. You called Greenspon's up and told them about it, did you? A. Yes, sir."

Witness testified that the beam had remained on the lot until about November 7th or 8th, and that it was about this time that he called up appellant's foreman and told him that the iron beam did not belong to him. The following testimony appears:

"Q. Now, then, after that time, you say that somebody went to work to put up a building on this vacant lot which you sold, starting about two weeks after that time, and the excavation took place, and then you said some time after that, the next time that you knew the I-beam was out there in that place between the sidewalk, between the pavement and the curb of the street, in front of your place of business; is that correct? A. Yes, sir.

"Q. And you didn't put it there? A. No, sir.

"Q. You didn't have anything to do with putting it there? A. No, sir.

"Q. You didn't know who put it there? A. No, sir.

"Q. Now, then, after it was out there, will you tell the court and jury whether you took it up with Joseph Greenspon's and told them anything about it, to take it, or call their attention to the fact that it was there, and, if so, tell the jury what you did. A. Called them up twice.

"Q. After that time? A. Yes, sir.

"Q. Who did you talk with? A. McHenry.

"Q. And called his attention to the fact that he hadn't come and gotten this I-beam? A. Yes, sir.

"Q. And that it remained there? A. Yes, sir."

The evidence further showed that it was dark in the vicinity of the public sidewalk at the point in question, and plaintiff and her escort both testified that they did not see the I-beam until both bad tripped and fallen over same. It was plaintiff's testimony that she did not see the beam until she fell over it; that the street was poorly lighted at that place, and that the store in front of which the beam was lying was not open or, lighted on this occasion, it being about 11 o'clock p. m.; that there was no guard or light around the beam giving notice of the obstruction. Plaintiff was corroborated by other witnesses as to the darkness of the street on this occasion.

There was expert medical evidence to support the nature and extent of the injuries complained of. As a result of the fall plaintiff had a lacerated and bruisbed shin bone, which developed into periostitis. She also cauffered a badly sprained ankle and knee, and it was the attending physician's opinion that the injury to the knee was permanent. At the close of plaintiff's case, appellant offered an instruction in the nature of a demurrer, which was overruled, whereupon the defendants rested.

On the ruling on the demurrer it is complained that it was not shown when the defendant Steffen notified the appellant that the iron beam was out in the street. It is true the record is silent with reference to fixing the date of this notification, though Steffen testified that he had notified appellant at least twice, and it is established that this was after November 7, 1921, being the time when the beam was first seen on the sidewalk by Steffen. However, giving plaintiff's evidence the benefit and favor of the best inferences from the facts which may be accorded the evidence, we may rule that the inference is allowable that the appellant was notified by Steffen immediately after he discovered the beam on the sidewalk. In other words, it may be inferred from the testimony set out, and similar testimony to the same effect in the record, that Steffen notified the Iron & Steel Company soon after, or within a very short time after November 7, 1921, and before February 4, 1922, when the injury occurred. The chief difficulty on this appeal rests with plaintiff's given instruction 3-B. This instruction is as follows:

"The court instructs the jury...