Rosenbaum v. Shoffner

• Decision Date: 21 April 1897
• Citation: 40 S.W. 1086,98 Tenn. 624
• Parties: ROSENBAUM v. SHOFFNER.
• Court: Tennessee Supreme Court

40 S.W. 1086

98 Tenn. 624

ROSENBAUM v. SHOFFNER.

Supreme Court of Tennessee.

April 21, 1897

Appeal from circuit court, Shelby county; L. H. Estes, Judge.

Action by Mary B. Shoffner against Morris Rosenbaum. There was judgment on a verdict for plaintiff, and defendant appeals. Affirmed.

Watson & Fitzhugh, for appellant.

L. & E Lehman, for appellee.

WILKES J.

This is an action for damages for the death of the plaintiff's husband. There was trial before the court and jury, and a verdict and judgment for $10,000, and the defendant has appealed, and assigned errors.

The facts, so far as material, are that the plaintiff's husband, Daniel P. Shoffner, went into the storehouse of the defendant, Rosenbaum, on Main street in the city of Memphis for the purpose of making some purchases, and was examining a base burner stove, and talking about its cost with a salesman or clerk. He was estimating the quantity of pipe that would be required to set it up, and in doing so walked back, and looked up at the wall to estimate the distance. The stove was upon a platform raised up from the floor some 13 inches, and 24 inches wide, upon which it had been placed for exhibition the western end of the platform coming up to the elevator opening; the north side of the platform being on a line with the south side of the elevator. Furniture was stored around the platform so that the stove could be examined only on the south and west sides. When deceased started to walk back looking at the stove, he was about 4 feet from the elevator. He struck his foot against the edge of the platform, and stumbled, and fell into the cellar. The elevator was not running at the time, and the platform was on the cellar or basement floor. The evidence is that it was out of fix. There is quite a controversy as to how the elevator shaft was protected, several witnesses stating that the opening was protected by a guard rail. This guard rail is described by the principal witness of the defense-one of the defendant's employés-as an elm slat or rail 7/8 by 3 1/2 inches. This witness says he procured the rail; that he did not select it; that it was all he had at the time, and he used it, and it was sufficient for what he wanted it; that it was a slat that had been used in packing furniture, and might have been weather-cracked; that a knot, just where it broke, might have weakened it some, but not to any great extent. There is some discrepancy as to how this guard rail was placed,-whether inside or outside of the opening. It was put on wooden cleats. There is testimony that one of these cleats was broken by the fall of the deceased, and other testimony that neither one of them was broken. The testimony shows that the rail was some 6 to 10 inches inside of the elevator and about 3 to 4 feet up from the floor. Cox and Kehoe- -two witnesses-went to the place the day after the accident, and inquired, among other things, for the guard rail, and were told by defendant that he did not know where it was; that it was lying around somewhere in the cellar; and they went with a porter into the cellar, and struck some matches, and looked for it, but were unable to find it. Before leaving the store, the witness Cox said to defendant that he had better find the guard rail, or he might have a suit on his hands. They left, and afterwards came back on the same forenoon, and asked defendant if he had found the bar, and he said "No." In the afternoon, as they were passing the place, defendant called them in, and said he had found it. Mr. Sauer, the principal witness for defendant, states that after the accident he found the guard rail; part of it on the elevator floor, and the other piece near it in the cellar. The jury, on defendant's application, were allowed to visit and inspect the premises. The deceased was a strong, active, business man, 57 years of age, engaged in the lumber business, having a wife and two daughters, and earning some $300 or $400 per month, and his expectancy was something over 16 years, according to the mortality tables. The evidence is quite indefinite as to how the guard rail was placed on the elevator, and when and how it was found after the accident. There was testimony going to show that after the accident a piece of plank some 8 or 10 inches broad was fastened on the elevator in such a way as to close up the space between the edge of the elevator and where the guard rail was placed, and some evidence that the posts were either changed or new posts put into the elevator frame. The evidence is quite indefinite as to whether the deceased was walking backward or not when he stumbled, and some uncertainty as to whether he fell into the elevator backward or not. The witnesses who were present say that he walked back to look at the stove, but they do not use the term "backward" except that they state with more less distinctness that he fell backward. There is some doubt from the proof as to how light it was about the mouth of the elevator.

It is said that it was error to allow Cox and Kehoe to state that when they visited the store on the day after the accident no guard rail was there, or could be found. This objection is based upon the ground that it gave the condition of things in the store after the accident, which could not illustrate the condition at the time of the accident, but was calculated to impress the jury that there was no guard rail there when the accident occurred. We think this evidence not incompetent. These witnesses went to the place to examine the surroundings, and see how the accident happened. It was claimed by the defendant at the time that the deceased fell against the guard rail and broke it, and they thereupon asked for the guard rail, to inspect it, and made search for it with the result stated. There is no claim that a new guard...