Pronnecke v. Westliche Post Publishing Co.

• Decision Date: 11 January 1927
• Citation: 291 S.W. 139,220 Mo.App. 640
• Parties: LOUIS C. PRONNECKE, ADMINISTRATOR OF THE ESTATE OF FRANK WEISS, DECEASED, APPELLANT, v. WESTLICHE POST PUBLISHING COMPANY, RESPONDENT. *
• Court: Missouri Court of Appeals

291 S.W. 139

220 Mo.App. 640

LOUIS C. PRONNECKE, ADMINISTRATOR OF THE ESTATE OF FRANK WEISS, DECEASED, APPELLANT, v. WESTLICHE POST PUBLISHING COMPANY, RESPONDENT. *

Court of Appeals of Missouri, St. Louis

January 11, 1927

Appeal from the Circuit Court of the City of St. Louis.--Hon William H. Killoren, Judge.

AFFIRMED AND REMANDED.

Judgment affirmed and cause remanded.

S. P Bond, for appellant.

(1) The court erred in setting aside the verdict and judgment of the appellant on the thirteenth ground of defendant's motion for a new trial in which it is claimed by respondent that the court erred in not giving and reading to the jury defendant's instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's case. The petition states a cause of action under the doctrine of res ipsa loquitur and the evidence sustains the petition. Gibler v. Railroad, 148 Mo.App. 486, citing authorities. When a negligent act is charged against the defendant in general terms it thus includes its servants appliances, etc. Miller v. United Railways Co., 155 Mo.App. 543; Gibler v. Railroad, 148 Mo.App. 486; Price v. Met. Street Ry. Co., 220 443; Swissman v. Wells, 255 S.W. 935; Gannon v. Laclede Gas Light Co., 145 Mo. 508; Sheridan v. Foley, 58 N. J. Law 230; Byrne v. Boadle, 2 H. & C. 722; Sackewitz v. American Biscuit Mfg. Co., 78 Mo.App. 144; Kapler v. Orth and another, 61 Wis. 531; Prapuloenis v. Construction Co., 279 Mo. 366, 213 S.W. 792; Burt v. Nichols, 264 Mo. 18. (2) The law imposes upon the master the duty of using ordinary care to provide his servant a reasonably safe place in which to do the work assigned to him. Sackervitz v. American Biscuit Mfg. Co., 78 Mo.App. 144; Fishell v. American Press, 253 S.W. 508; Colelli v. New Jersey & P. Concentrating Works, 87 Hun. 428, 134 N.Y.S. 310; Dixon v. Pluns, 98 Cal. 384; Lake Shore & Mich. Southern Ry. Co. v. Rosingeig, 113 Pa. 519. See Scott v. Dock Co., 3 Hurlston & Coltman 596, cited in Wharton on Negligence, p. 701; Trego v. Rubovits, 178 Ill.App. 127, 130; Vogel v. America Chicle Co., 190 A.D. 796; Vogel v. American Chicle Co., 190 A.D. 796. (3) Not necessary to show as certainty what caused accident. Berkbigler v. Scott County Milling Co., 275 S.W. 602; Vogel v. American Chicle Co., 190 A.D. 797. (4) Plaintiff's case is also aided by the presumption that Weiss was engaged in the discharge of his duty and was exercising ordinary care for his own safety at the time he was injured. Berkbigler v. Scott County Milling Co., 275 S.W. 599; Liston v. Railroad Co., 129 Mo.App. 231; McDaniel v. Hine, 292 Mo. 401. (5) Whether it was the duty of the miner or employer to inspect the working place held question of fact. Schillings v. Big Creek Coal Co., 277 S.W. 964; Sec. 2332, Wagner's Revised Ordinances of St. Louis, 1914. (6) The elevator was not in actual use at the time of the injury for elevator purposes. The law imposed upon the master to provide trap doors or self-closing hatches to keep such trap doors or self-closing hatches closed at all times, except when in actual use by the occupant of the building having use and control of same. This the defendant failed to do. In such case the rule of res ipsa loquitur should be invoked. Sec. 6789, R. S. 1919. Irmer v. Brewing Co., 69 Mo.App. 17; McRickard v. Flint, 114 N.Y. 282; Laws of N. Y. 1874C, 547, sec. 5. Referred to in above case is similar to the Missouri statute. Newell v. Boatmen's Bank, 279 Mo. 672; 216 S.W. 918; Trego v. Rubovits, 178 Ill.App. 127, 130. (7) The law imposes upon the master to place below the machinery and sheaves, at the top of the elevator shaft substantial grating or screen or iron to prevent persons, objects from falling into such shafts. Wagoner's Revised Code of St. Louis, sec. 2332. It was not error in the court to admit the ordinance in evidence. Bailey v. Kansas City, 189 Mo. 514; Kinney v. Met. St. Ry. Co., 261 Mo. 97. (8) A general charge of negligence is good after answer. Foster v. Railway, 115 Mo. 165. (9) The petition states a cause of action under the doctrine of res ipsa loquitur under sec. 6789, R. S. 1919. Newell v. Boatmen's Bank, 279 Mo. 672, 216 S.W. 918; Propuolenis v. Construction Co., 279 Mo. 366, 213 S.W. 792. (10) In the case before the court the respondent did not attempt to prove that the injury was caused by a third party or the act of God as it was its duty to do, if it sought to overcome the burden of proof cast upon it. 29 Cyc. 609. (11) Error in overruling demurrer to evidence is waived by introduction of evidence by defendant. Ehrlich v. Mittelberg, 252 S.W. 278.

Buder & Buder for respondent.

(1) The doctrine of res ipsa loquitur does not apply to a case where the evidence merely shows that the plaintiff was struck by a falling object, without identifying the object and without showing its source and the cause of its precipitation. In order to recover in such a case the plaintiff must not only prove that he was struck by the object and injured, but must also establish negligence on the part of the defendant and show a causal connection between the two. Shields v Robins, 33 N.Y.S. 639; Carl v. Young & Robie, 103 Maine 100; Hogle v. Franklin Mfg. Co., 105 N.Y.S. 1095; Stumpf v. D. L. & W. Ry. Co., 76 N. J. Law 153; Cathron v. Cudahy Packing Co., 98 Mo.App. 343; Dyer v. Sutherland B. & C. Co., 258 S.W. 48. (2) The doctrine of res ipsa loquitur is very rarely applied in a case between master and servant, and cannot be invoked unless the evidence is such as to exclude all defensive inferences, including contributory negligence, negligence of a fellow servant, latent defects, defects which the defendant had no reasonable opportunity to discover, lack of causal connection and the assumption of risk. Removich v. Bambrick Bros. Const. Co., 264 Mo. 43, 49, and cases therein cited. (3) The rule of res ipsa loquitur as establishing negligence on the part of the defendant is based on the doctrine of probabilities, and never applies unless the facts concerning the cause of the accident are peculiarly within the knowledge of the defendant and not equally accessible to the plaintiff. It does not apply unless the defendant is definitely shown to be in a better position to explain the cause of the accident than the plaintiff. Klebe v. Parker Distilling Co., 207 Mo. 480; Russell v. Railway Co., 245 S.W. 590; Byers v. Essex Investment Co., 281 Mo. 375. (4) The building of one presumption upon another presumption, or one inference upon another inference, constitutes mere speculation and conjecture, and the law will not permit a recovery where an attempt is made to establish liability in this method. State ex rel. v. Utilities Co. v. Cox, 298 Mo. 427; Hays v. Hogan, 273 Mo. 1; Menteer v. Fruit Co., 240 177; Yarnell v. Ry. Co., 113 Mo. 570. (5) The mere fact that a servant is injured while engaged about his master's business raises no presumption of negligence on the part of the master. Riger v. Fleming Lbr. Co., 210 Mo.App. 322; State ex rel. v. Cox, 298 Mo. 427; Myers v. Strauss, 264 S.W. 801; Goode v. Central C. & C. Co., 167 Mo.App. 169. (6) An employer is not an insurer of the safety of persons in his employ, but is only liable for injuries which are the direct and proximate result of his failure to use ordinary care to furnish a place which is reasonably safe for his employees to do their work. Van Bibber v. Swift & Co., 286 Mo. 317; Spindler v. American Express Co., 232 S.W. 690; Yarbrough v. Hammond Packing Co., 231 S.W. 72; Russell v. St. Louis & S. F. Ry. Co., 245 S.W. 590; Ryan v. Lea, 249 S.W. 685; Wendall v. Railway Co., 100 Mo.App. 556. (7) In cases where the plaintiff's injury may, with equal probability, have resulted from one of several causes, for only one of which the defendant would be liable, it is incumbent upon the plaintiff to prove that his injury arose from that cause for which the defendant is liable; otherwise he fails to get his case out of the realm of speculation and conjecture and cannot recover. Pippen v. Plummer Construction Co., 187 Mo.App. 360; McGrath v. St. Louis Transit Company, 197 Mo. 97; Smart v. Kansas City, 91 Mo.App. 586; Waldmann v. Skrainka Const. Co., 211 Mo.App. 576; O'Dell v. National Lead Co., 253 S.W. 397; Weber v. Valier & Spies Milling Co., 242 S.W. 985; Courter v. Chase & Son Mercantile Co., 266 S.W. 340. (8) After trying his case in the lower court on the theory of defendant's commonlaw liability plaintiff cannot, on appeal, invoke the aid of a statute such as Section 6789, R. S. 1919. Glaser v. Rothschild, 106 Mo.App. 418. (9) Section 6789, R. S. 1919, was framed to protect employees from falling into elevator shafts while the elevators were not in use, and it does not apply to a case where the elevator was in use at the time of the accident, nor does it cover an employee operating the elevator. Latapie-Vignaux v. Askew Saddlery Co., 193 Mo. 1. (10) In cases where specific negligence is alleged in the plaintiff's petition he must, in order to succeed, prove one or more assignments of negligence set forth in his pleadings, and cannot recover on the res ipsa loquitur doctrine. Motsch v. Standard Oil Co., 223 S.W. 677; Hennekes v. Beetz, 203 Mo.App. 63. (11) Even in cases where the plaintiff pleads general negligence only in his petition he will estop himself from invoking or relying on the doctrine of res ipsa loquitur, if, by his evidence, he proves specific acts of negligence. McAnany v. Shipley, 189 Mo.App. 396; Cook v. Union Electric L. & P. Co., 232 S.W. 248. (12) An objection to the erroneous admission of incompetent or immaterial evidence is not waived by the introduction of rebutting evidence by the objecting party although his evidence may be of the same kind objected to. Stipel v. Piggott, 269 S.W. 942; Reynolds v. Publisher, 155 Mo.App....