Schneider v. Pevely Dairy Co.
| Decision Date | 03 July 1931 |
| Docket Number | No. 29638.,29638. |
| Citation | 40 S.W.2d 647 |
| Parties | EMIL SCHNEIDER v. PEVELY DAIRY COMPANY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis. — Hon. Granville Hogan, Judge.
REVERSED AND REMANDED.
Allen, Moser & Marsalek for appellant.
(1) No prima-facie case was made by plaintiff and the trial court erred in refusing to peremptorily direct a verdict for the defendant. (a) Since there was no evidence as to what caused the step of the wagon to sway, if it did, and no evidence that the defect therein, if any, which caused it to sway, had existed for one moment prior to the time of plaintiff's injury, there was a total failure to prove any negligence or breach of duty on the part of defendant. In order to hold a master liable for injuries resulting from a defect in an appliance furnished the servant or in the servant's place of work, arising during the progress of the work, it must be shown not only that there was a defect in such appliance, or place, which caused the injury, but that such defect was known to the master or could have been known to him by the exercise of ordinary care. Manche v. Basket & Box Co. (Mo.), 262 S.W. 1023; Haggard v. Coal Co., 200 S.W. 1074; Wilson v. Mo. Pac. Co., 5 S.W. (2d) 21; Near v. Railroad, 261 Mo. 80; Removich v. Const. Co., 264 Mo. 43; Howard v. Railroad, 173 Mo. 524; Kolbow v. Mfg. Co., 318 Mo. 1243; Glasscock v. Dry Goods Co., 106 Mo. App. 657; Rowden v. Daniell, 151 Mo. App. 26; Eudy v. Lead Co., 220 S.W. 506; Goodrich v. Ry. Co., 152 Mo. 222. (b) The defendant, as master, cannot be held liable on the ground of any breach of duty in failing to inspect the wagon or step, since there is no evidence tending to show that the defect, if any, which is claimed to have caused the injury, would or could have been discovered by the exercise of ordinary care to inspect the wagon or step, or by the most minute inspection, in time to have prevented the injury. Hoffman v. Lime Co., 317 Mo. 99; Removich v. Const. Co., 264 Mo. 56; Rowden v. Daniell, 151 Mo. App. 26. (c) From the fact that the step swayed, if it did, it could not be inferred that any particular defect existed in the step or its fastenings, either beneath the wagon or at the side thereof, and that such condition had existed long enough for the master, by the exercise of ordinary care, to have discovered and remedied the same. Layton v. Chinberg, 282 S.W. 436; Cardinale v. Kemp, 309 Mo. 276; State ex rel. Utilities Co. v. Cox, 298 Mo. 427; Hamilton v. Ry. Co., 318 Mo. 123. (2) The court erred in giving, at plaintiff's request, Instruction 1, for the reason that it purported to cover the whole case and directed a verdict, but failed to require the jury to find that the defect, if any, in the step, which, it is claimed, caused it to sway, was known to defendant, or by the exercise of ordinary care could have been known to it. An instruction which purports to cover the entire case and directs a verdict, but which omits to require the jury to find an essential element of plaintiff's case, is prejudicially erroneous. Hall v. Coal & Coke Co., 260 Mo. 351; Heigold v. U. Rys. Co., 308 Mo. 142; Rawie v. Railroad Co., 310 Mo. 72.
Mark D. Eagleton and Mason, Goodman & Flynn for respondent.
(1) Where appellant's abstract affirmatively shows that evidence was presented before the trial court and jury which is not set out in the abstract, this court will not review the action of the trial court in overruling a demurrer to the evidence. Harrison v. Pounds, 190 Mo. 349; Craven v. Midland Milling Co. (Mo. App.), 228 S.W. 513; Smith v. Wilson (Mo. App.), 296 S.W. 1036; Grigman v. St. Joseph. 251 S.W. 725; Strother v. Barrow, 246 Mo. 254. (2) As presented to this court on appeal, the one vital question is, Was the evidence concerning the step in question and the manner in which it was braced and secured sufficient to authorize the trial court to submit to the jury the plaintiff's claim that the step was negligently allowed to be unsafe and insecure? It appears that defendant's foreman, in describing the step and the manner in which it was braced and bolted, made use of a drawing, which is not incorporated in the record. He also, to a large extent, gave his testimony in the form of pantomime and sign language which might have been very clear and expressive as presented to the jury, but is absolutely meaningless as referred to in the record. This court is, therefore, not in position to review the action of the trial court in overruling defendant's demurrer to the evidence. Authorities supra; Higgins v. Patent Pulley Co., 240 S.W. 252; Strother v. Railroad, 188 S.W. 1102. (3) In determining the propriety of the action of the trial court in overruling defendant's demurrer to the evidence, not only must all of plaintiff's evidence be accepted as true, not only is he entitled to the benefit of every possible inference that can be reasonably drawn from plaintiff's evidence, but he is also entitled to the benefit, in so far as it favors him, of all of the defendant's evidence and of all inferences that may fairly be drawn therefrom in plaintiff's favor. Evans v. General Explosives Co., 293 Mo. 364; Gerber v. Kansas City (Mo.), 263 S.W. 436; Stewart v. Ry. Co., 262 S.W. 441; Ruch v. Pryor, 199 S.W. 750; Staggs v. Mining & Milling Co., 199 S.W. 717; Lutgen v. Standard Oil Co., 287 S.W. 887; Kennedy v. Quarry & Construction Co., 291 S.W. 476; Pauck v. Beef & Provision Co., 159 Mo. 467. (4) Plaintiff sustained his burden of showing negligence of defendant in furnishing an unsafe step by showing that its looseness and swaying caused him to fall on the occasion that he was injured and by showing that he had previously called his master's attention to the defective condition of the step. The defect in question was called to the employer's attention for the last time only four or five days before the accident. The evidence was ample that the dangerously loose condition of the step caused the plaintiff's injury and that the defendant had notice of it, had undertaken to repair it, and had failed to properly repair it. Plaintiff was not charged with the duty of either constructing or repairing the step and did not have the burden of showing just what particular nut or bolt gave way at the time of his injury. The evidence was sufficient to justify the jury in inferring that the step gave way because of defective bolts and nuts which had been put in to hold the brace in position, and that the defendant knew, or should have known, of the defect. Authorities under Point 3. (5) Plaintiff's Instruction 1 is not erroneous. It required the jury to find not only that the step was unsafe and dangerous, but that on prior occasions it had moved and swayed so as to be unsafe and dangerous, and also required the jury to find that in furnishing the step under the circumstances shown in evidence the defendant failed to exercise ordinary care and was guilty of negligence, and that as a direct result of such negligence the plaintiff was injured. This was equivalent to requiring the jury to find that the step was unsafe and that the defendant knew, or in the exercise of ordinary care should have known, that it was unsafe. Morton v. Construction Co., 280 Mo. 381; Hall v. Ry. Co., 74 Mo. 302; Peters v. Hooven & Allison Co., 281 S.W. 74.
The plaintiff in the Circuit Court of the City of St. Louis recovered judgment from which the appeal is taken, for $12,000 for injuries received while employed in operating one of defendant's milk wagons. A defect, it is claimed, in the step of the milk wagon caused the plaintiff to fall, June 23, 1924.
He testified that he was backing out of the wagon carrying a crate container filled with milk bottles, and while stepping down and holding to a hand rail with one hand the step swayed in underneath the wagon, his foot slipped, he lost his balance and fell backward on the sidewalk, causing severe injury to his right elbow.
I. Appellant assigns error to the giving of Instruction No. 1 for plaintiff, as follows: "Instruction No. 1. "The court instructs the jury that if you find and believe from the evidence that on the 23rd day of January, 1924, the plaintiff was in the employ of the defendant, and that while working within the line and scope of his employment he was Later Defect: required to drive the wagon mentioned in evidence, Knowledge. and that on said date, while stepping from said wagon and using one of the steps thereon, he was caused to fall when said step did move, if you do so find, and that plaintiff was injured thereby; and if you further find that on and prior to said occasion the said step was not properly supported or secured and that by reason there of said step would move or sway when stepped upon by the plaintiff, and that said step was thus and thereby unsafe and dangerous and not reasonably safe, and if you further find that the defendant in thus furnishing and providing the aforesaid step under the aforesaid circumstances, if you do so find, did fail to exercise ordinary care and was guilty of negligence, and that the plaintiff while using said step under the circumstances aforesaid, if you do so find, was injured as a direct and proximate result of the aforesaid negligence (if you find that the defendant was guilty of negligence in furnishing and providing a step that was not reasonably safe on account of the fact that said step would and did move and sway with the plaintiff thereon), then your verdict will be in favor of the plaintiff and against the defendant herein."
It is said to be erroneous because there was no evidence that the step as furnished was defective and the jury was not required to find that the defendant knew or by the exercise of ordinary care could have discovered a defective condition in the step in time to have remedied it prior to the plaintiff's fall.
The only evidence of any defect in the step was the evidence of the plaintiff himself. The...
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