Nephler v. Woodward

• Decision Date: 22 December 1906
• Citation: 98 S.W. 488,200 Mo. 179
• Parties: SALLIE NEPHLER v. WOODWARD et al., Appellants
• Court: Missouri Supreme Court

98 S.W. 488

200 Mo. 179

SALLIE NEPHLER v. WOODWARD et al., Appellants

Supreme Court of Missouri, Division One

December 22, 1906

Appeal from Lafayette Circuit Court. -- Hon. Samuel Davis, Judge.

Affirmed.

E. M Bartlett and Thomson, Stanley & Price for appellants.

(1) Instruction 1 requested by respondent and given by the court purported to state the facts in a general way and directs the jury that respondent may recover if using ordinary care without defining the same, and is therefore erroneous. Sanitary Dairy Co. v. Railroad, 98 Mo.App. 20. (2) The same instruction is also bad as it does not refer to, but on the contrary absolutely ignores, the affirmative defense of contributory negligence of the respondent pleaded by appellants. Evans v. Railroad, 16 Mo.App. 522; Fitzgerald v. Hayward, 50 Mo. 523; Goetz v Railroad, 50 Mo. 472; Russell v. Railroad, 26 Mo.App. 368; McDonald v. Railroad, 32 Mo.App. 70; Bailey v. Bearsley, 32 Mo.App. 406; Walsh v. Edmison, 46 Mo.App. 382. (3) Instruction 3 requested by respondent and given by the court is erroneous in that it is misleading and does not state the consequences of a breach of the duty ascribed to appellants. Kimbal v. Railroad, 108 Mo.App. 78. (4) The court erred in overruling the demurrer of the appellants to the evidence of respondent, as the pleadings put in issue the partnership of defendants, and there was not a particle of evidence introduced by respondent to establish that fact. (5) The court erred in not defining the issues between the partties made by the pleadings as it should have done in order that the jury might thoroughly understand the same, and therefore the refusal by the court to give instruction 2 requested by appellants, which properly defined the issues, was prejudicial error. (6) The court in overruling appellants' motion for a new trial erred, because the verdict was against the weight of the evidence, and in fact was against the vast preponderance of the evidence, and consequently the verdict should have been set aside and a new trial granted. Bauer Grocery Co. v. Sanders, 74 Mo.App. 657; Marshall v. Ins. Co., 43 Mo. 586; Rothschild v. Ins. Co., 62 Mo. 356; Murdock v. Brown, 16 Mo.App. 548; McConey v. Wallace, 22 Mo.App. 377; Lawson v. Wilson, 37 Mo.App. 636.

John Welborn and Robert E. Rooney for respondent.

(1) The first objection made by appellants, that instruction 1 requested by respondent and given by the court is bad on account of there being no definition of "ordinary care" contained in said instruction, is wholly without merit, as the second instruction asked by respondent and given by the court consists of a proper definition of "ordinary care" as used in the instructions. Shaw v. Dairy Co., 56 Mo.App. 525; Hughes v. Railroad, 127 Mo. 452; Bank v. Hatch, 98 Mo. 376; Perrette v. Kansas City, 100 Mo.App. 567; Squiers v. Kansas City, 100 Mo.App. 632; Grace v. Railroad, 156 Mo. 295; Liese v. Meyer, 143 Mo. 560; Deweese v. Meramee Iron Min. Co., 143 Mo. 560; Fullerton v. Railroad, 84 Mo.App. 499. (2) The second objection by appellants, that the first instruction requested by respondent and given by the court, is also bad, as it does not refer to, but on the contrary ignores, the affirmative defense of contributory negligence of respondent, pleaded by appellants, is equally without merit, as there was no evidence in the case tending to show that respondent was guilty of contributory negligence. Hughes v. Railroad, 127 Mo. 453; Stone v. Hunt, 114 Mo. 74; White v. Chaney, 20 Mo.App. 397; McAtee v. Vanlandingham, 75 Mo.App. 53; Keithley v. Southworth, 75 Mo.App. 443; Kelley v. Stewart, 93 Mo.App. 47. (3) Instruction 3, requested by respondent and given by the court, is a correct statement of the law under the facts given in evidence and taken in connection with the other instructions could not have confused or misled the jury. McGrew v. Railroad, 109 Mo. 590; Jackson v. Railroad, 29 Mo.App. 496; Bunk v. Railroad, 17 Mo.App. 196; Meredith v. Wilkinson, 31 Mo. 1; Hemphill v. Kansas City, 100 Mo.App. 567; Anderson v. Union Terminal Co., 161 Mo. 411; Owens v. Railroad, 95 Mo. 169; Crawford v. Doppler, 120 Mo. 362; Schorler v. Schorler, 18 Mo.App. 69. (4) As to the fourth point made by appellants, that the court erred in overruling the demurrer of appellants to the evidence of respondent for the reason that partnership was alleged and not proven, it is without foundation, for the reason that the partnership was admitted by stipulation introduced in evidence, and if it could be held that such stipulation was not sufficient, then the overruling of the demurrer was waived by appellants' proceeding to trial, and the defect, if any, was cured by the testimony of defendant Woodward. Erwin v. Railroad, 96 Mo. 294; Bowen v. Railroad, 95 Mo. 275; Gunther v. Railroad, 95 Mo. 268; Price v. Barnard, 65 Mo.App. 649; Jennings v. Railroad, 112 Mo. 268; Brock v. Railroad, 107 Mo.App. 109; Elberg v. Railroad, 96 Mo.App. 367.

OPINION

VALLIANT, J.

Plaintiff alleges that defendants were proprietors of a theater in Kansas City; that plaintiff with a party of friends attended a theatrical performance at defendants' theater on the afternoon of April 15, 1899; that as she was passing down one of the aisles to the seat that she was to occupy, her foot was caught in a hole in the carpet, in consequence of which she fell, striking her left side against one of the theater chairs, and received severe injuries to her person.

The petition alleges that the theater was dimly and not sufficiently lighted and that the hole in the carpet and the insufficient light made the condition dangerous to persons attending the performance as plaintiff was; that the defendants knew or by the exercise of ordinary care would have known the condition a sufficient length of time before the accident to have remedied it, but neglected to do so.

The answer was a general denial and a plea "that any injury or damage the plaintiff may have suffered was the result of her own fault, want of care and negligence." Reply, general denial.

The testimony on the part of the plaintiff tended to prove that she and three of her female friends, having purchased their tickets to the matinee performance, attended the theater and were being shown to their seats by the usher; that as the plaintiff was passing down the aisle which was an inclined floor, her left foot was caught in a hole in the carpet, which caused her to trip and she fell striking her left side violently on the iron arm of the chair; that she was rendered sick immediately, but remained in the theater during the performance, and when it was over was assisted to walk to the home of a friend where she remained until about 8 o'clock that evening, then walked home and went to bed suffering great pain and applying home remedies; that this was a Saturday and she called in a physician the next Monday; that from the day of the accident to the day of the trial she had been an invalid with great suffering, had been subjected to a very serious surgical operation and her injuries were permanent. A witness for plaintiff testified that he had caught his foot in the same hole and tripped a week or two before the plaintiff's accident. Plaintiff's testimony also tended to show that the light had not been fully turned on when she fell and the light was dim. The accident occurred April 15, 1899; the suit was brought November 8, 1902.

On the part of defendant the testimony tended to show as follows:

About three months before the alleged accident the theater had been burned out, rebuilt and entire new furniture and new carpets had been put in. On the aisle in question there was a new ingrain carpet, the ordinary wear of which for such use was two or three years. The defendants had never heard that there was any hole in this carpet and there was no hole in it. The theater was brilliantly lighted with electric lights, which were fully turned on before the doors were opened or the people began to arrive. Defendants never heard of the alleged accident until this suit was brought, more than three years after it is alleged to have occurred. Defendants' testimony also tended to prove that the plaintiff's physical condition on which she predicated claim for damages was not the result of the alleged accident, but of disease of which she was suffering before.

The suit was begun in Jackson county and taken by change of venue to Lafayette county, where there was a trial resulting in a judgment for plaintiff for $ 5,000, from which defendants appeal.

The assignments of error are based on the action of the court in giving certain instructions for the plaintiff and refusing certain others requested by the defendants, also in overruling the motion for a new trial.

I. At the close of the plaintiff's case and again at the close of all the evidence the defendants asked instructions in the nature of a demurrer to the evidence.

Defendants hardly contend that there was no evidence tending to prove the cause of action stated in the petition, but do with great seriousness contend that the preponderance of the testimony was so greatly against the plaintiff that the verdict ought not to stand, and that is the argument on which is based also the complaint that the court erred in overruling the motion for a new trial. It is argued that the plaintiff's own evidence showed that it would have been a physical impossibility for her to have fallen as she said she did and as her friends who were with her said she did. As she came down the aisle, according to her testimony, she walked north in the direction of the stage, the seats she and her friends were to occupy were to her right, when she reached the seats she turned to the right with her face towards the east, her left foot was caught in the...