Pietraschke v. Pollnow

• Decision Date: 04 February 1941
• Docket Number: No. 25401.,25401.
• Citation: 147 S.W.2d 167
• Parties: PIETRASCHKE v. POLLNOW et ux.
• Court: Missouri Court of Appeals

147 S.W.2d 167

PIETRASCHKE v. POLLNOW et ux.

No. 25401.

St. Louis Court of Appeals. Missouri.

February 4, 1941.

Appeal from St. Louis Circuit Court; Eugene J. Sartorius, Judge.

"Not to be reported in State Reports."

Action by Esther Pietraschke by Otto Pietraschke, her next friend, against F. J. Pollnow and wife for personal injuries allegedly sustained by Esther Pietraschke while in defendants' employ. From an adverse judgment, plaintiff appeals.

Affirmed.

C. Kenneth Thies and Charles A. Lich, both of St. Louis, for appellant.

Moser, Marsalek & Dearing and William H. Allen, all of St. Louis, for respondents.

SUTTON, Commissioner.

This is an action for personal injuries sustained by plaintiff while in the employ of defendants. At the close of the evidence adduced by plaintiff the trial court gave an instruction in the nature of a demurrer to the evidence requested by defendants. Plaintiff thereupon took an involuntary nonsuit, and after unsuccessfully moving to set the same aside, has brought the case here by appeal.

Plaintiff assigns error here for the giving of defendants' instruction in the nature of a demurrer to the evidence.

At the time of plaintiff's injury she was employed by defendants in their home in the City of St. Louis as a housemaid. She was seventeen years of age, and had worked for defendants as housemaid for about nine months. She had performed like services in other homes for about six months prior to her employment by defendants. She was injured on the morning of June 2, 1938.

On the evening prior to plaintiff's injury defendants and two of their friends, Mr. and Mrs. Freesmeier, had played bridge in the living room on the ground floor of their residence. According to plaintiff's testimony she arose about 6:30 the next morning and cleaned the stairs, and then went into the living room where she saw the bridge table that had been used the night before with three dining room chairs around it. She took two of these chairs and carried them into the dining room, then came back and got the other chair and carried it into the dining room, then went to the bridge table and took two highball glasses and two beer bottles therefrom and carried them into the kitchen, and then returned to the living room and got the ash trays from the bridge table and took them to the kitchen, where she put the glasses in the sink, emptied the ash trays, and again returned to the living room. While she was in the kitchen on this last occasion Mrs. Pollnow came downstairs and went into the living room, and when plaintiff entered the living room and went again to the bridge table she saw Mrs. Pollnow sitting in the living room looking at a newspaper. Plaintiff then made two quick swipes with her right hand across the bridge table to get off some ashes that were on the table, and on making the second swipe she felt a sharp snap and a pain and found she had run a needle into her hand. The point of the needle broke off with the impact of her hand, and fell to the floor.

Plaintiff produced at the trial a portion of the needle that had been broken off in her hand. It was the head of the needle, that part containing the eye. It had entered plaintiff's hand eye first. She testified that she had never used a needle as large as that, that she was not permitted to sew downstairs, that she would sew in her room, but used a very small needle; that she did not see any quilt patches down there that morning; that there were no quilt patches in the kitchen that morning; that she had worked on some in her room upstairs the night before; that while working there she did not bring any quilt patches downstairs; that Mrs. Pollnow darned socks and mended clothes for the children, and plaintiff had seen her sew downstairs; that at the time of her injury no one was downstairs except plaintiff and Mrs. Pollnow.

Plaintiff testified that the Pollnows played bridge frequently, two or three times a week, and that she always cleared off the table and took away the chairs; that she did not see the needle on the first four trips she made to the table on the occasion of the accident, nor did she see it the fifth time either; that she did not see it at any time prior to running it into her hand; that there was plenty of light there for her to do her work and she knew where the electric switches were and could have turned on more light if she had wanted it; that her duties included cleaning up the house, cleaning off the bridge tables, cleaning up the floors, dusting the furniture and cooking breakfast, and that she assisted Mrs. Pollnow with the other meals; that from time to time in connection with work of that sort she had occasionally seen pins and needles and such things lying on the floors and tables; that she knew that those occasionally do drop on tables or on floors, and that in connection with cleaning up she would naturally observe where she was cleaning, and if she would see a pin or needle or something of that sort she would pick it up; that on the occasion of her injury she was going to sweep the ashes off the table, just brush them off on the floor, and while she was doing this she ran the needle in her hand; that while she was standing at the bridge table, and as she started to brush the ashes from it, she was looking down at the table; that the table was an ordinary circular bridge table, with a black top, more than three feet across, about four and a half feet, or not quite so big, and that anything on the table was perfectly visible to her, including discarded needles, or pins, or anything else that may have been there; that in looking at the table to see what was on it and where to clean she just glanced over the table and did not see the needle; that she did not put the needle on the table; that she knew there were ashes on the table when she took the ash trays out; that there were not enough ashes there to be seen on the floor when flicked off the table.

Plaintiff read in evidence portions of the deposition of Mrs. Pollnow taken by plaintiff, wherein she testified that on the morning of the injury she came down to the living room about 7:30, that the bridge table was a round table with metal around the sides, the top being covered with a sort of linoleum that was glossy, smooth, and black; that when she went to the living room she got the morning paper and was sitting in the living room and started to look at the paper, and that plaintiff heard her and came in from the kitchen to put the card table away, and in brushing the ashes off the table the needle caught her in the hand; that she sewed very seldom; that she had an opportunity to see a needle on the table, if it had been there, when they were playing bridge.

Plaintiff read in evidence a portion of the deposition of Mr. Pollnow taken by plaintiff, wherein he testified that the incident in question occurred prior to his arising, and that he knew nothing as to how it happened; that the Freesmeiers were guests in his home the night before; that they had one or two highballs during the evening; that they sat at the table about two and one-half hours the night before; that if there was a needle on the table he thought he would have seen it; that he knew nothing about the accident one way or another and never saw the needle nor the point broken off.

Dr. Henry P. Thym testified that he assisted Dr. Jungk in removing the needle from plaintiff's hand; that the needle was lying diagonally between the middle and the ring finger; that the head of the needle was stuck in the bone tissue.

Frank G. Freesmeier testified that he and his wife had frequent interfamily bridge games with the Pollnows, as much as two or three times a week, when he was in town; that he did not remember the specific date of this particular bridge game, but that on no occasion that he ever played bridge there did he ever see a needle on a bridge table; that when they played bridge they had enough light to see the cards and the surface of the table; that refreshments in the way of a drink or two were served on these occasions.

Mrs. Freesmeier did not testify.

Plaintiff pleaded that defendants negligently attached the needle to the bridge table with the point imbedded therein, negligently placed the needle in the table in such fashion that it was driven into plaintiff's hand as she performed her duties, negligently failed to provide plaintiff with a safe place to work, and negligently failed to warn plaintiff of the condition prevailing.

Obviously there is no substantial evidence in this record to support a finding that defendants, or either of them, stuck the needle in the top of the bridge table. Such a finding would have to be based on mere speculation and conjecture. No witness saw the needle on the table before the accident. When plaintiff struck the needle with her bare hand the point of the needle broke off and fell on the floor. That the needle was on the table, that plaintiff struck it with her hand, that the point of the needle entered her hand when she struck it, and that the point of the needle broke off and fell on the floor, is all that the direct evidence shows. It cannot be said whether the needle was sticking in the table or was merely lying on the table. The evidence indeed tends to exclude the idea that the needle was sticking in the table. Plaintiff said she was leaning over the table and looked at it in connection with what she was doing, and that anything on it, including pins and needles, were perfectly visible to her. Yet she did not see the needle. If the needle had been...