Schuepbach v. Laclede Gaslight Co.

• Citation: 135 S.W. 29,232 Mo. 603
• Parties: SCHUEPBACH v. LACLEDE GASLIGHT CO.
• Decision Date: 28 February 1911
• Court: United States State Supreme Court of Missouri

135 S.W. 29

232 Mo. 603

SCHUEPBACH v. LACLEDE GASLIGHT CO.

Supreme Court of Missouri, Division No. 1.

February 28, 1911.

1. APPEAL AND ERROR (§ 2)—RIGHT OF APPEAL—RESTRICTIONS.

Since the right of appeal is statutory, the Legislature may regulate and limit the remedy.

2. APPEAL AND ERROR (§ 1170)—REVIEW—PREJUDICE—INSTRUCTIONS.

Under Rev. St. 1909, § 2082, forbidding a reversal on appeal unless errors have been committed materially affecting the merits, plaintiff was not entitled to a reversal for alleged error in instructions, where he was not entitled to recover on the facts.

3. MASTER AND SERVANT (§ 332)—INJURIES TO THIRD PERSON—NEGLIGENCE OF SERVANT—QUESTION FOR JURY.

Defendant occupied the basement of a saloon as a meter room. Access to the basement was had by a trapdoor partly in the lobby of the saloon. Defendant's servant had passed through this door to the basement, closing the door after him, and, on returning, lifted the door and held it open an instant, while he was putting his memorandum book into his pocket, and while it was so open plaintiff, who was using a telephone in the saloon with his back to the stairway opening, backed into the hole, and fell to the cellar. Neither plaintiff nor defendant's servant saw the other prior to the accident. Held, that defendant's servant was not negligent as a matter of law in allowing the trapdoor to remain open an unnecessary length of time after he emerged from the basement, and that defendant was therefore not liable.

4. MASTER AND SERVANT (§ 332)—INJURIES TO THIRD PERSON—NEGLIGENCE OF SERVANT—INSTRUCTIONS.

An instruction in an action for injuries by the alleged negligence of defendant's servant, stating that, if defendant's servant went on the premises solely in connection with his business as a gas meter inspector, used the usual means of ingress and egress open to him for such business, and had no actual knowledge of the danger to plaintiff in time to have prevented the injury to him by the exercise of ordinary care, then the verdict should be for defendant, was objectionable as confining the duty of the servant to diligence after he had actual knowledge of plaintiff's danger.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Action by Frederick Schuepbach against the Laclede Gaslight Company. Judgment for defendant, and plaintiff appeals. Affirmed.

John A. Talty, for appellant. Percy Werner, for respondent.

LAMM, J.

Plaintiff, counting on negligence, sues in the circuit court of the city of St. Louis for $15,000 damages for personal injuries. A verdict going against him and judgment following, he appeals, complaining of one of defendant's instructions. It is argued, contra, (1) that the criticised instruction is good law; (2) further, that the judgment should stand though the instruction be bad, this on the theory that plaintiff made no case for the jury on the evidence; ergo, if the verdict had been for him, it would have had no legal foot to stand on and (the result being right) a mere error in instructions does not go to the merits.

The story of the case may be outlined by fetching a small compass. Thus:

The Case on the Pleadings.

The petition runs on the theory that plaintiff was lawfully in a certain building using a telephone; that a certain one of defendant's servants in the line of his service, while plaintiff was telephoning, opened a trapdoor in the floor in plaintiff's rear, and negligently left it open, without plaintiff's knowledge and without giving him any warning or notice; and that plaintiff, unaware of his danger, in leaving the telephone stepped into the opening in the floor thus made, fell into the basement, and suffered grave injuries. The answer, barring conventional admissions, denies the charging allegations, and pleads contributory negligence, in that plaintiff without exercising ordinary care stepped backwards into the hole without looking to see whether the trapdoor was up or down. The reply denies the contributory negligence.

The Case on the Facts.

Defendant stood mute at the trial; plaintiff having fully exploited the mine of facts by putting on the stand all the known eyewitnesses, including defendant's servant, whose alleged negligence is complained of. There is little conflict between plaintiff's witnesses and what little there is will presently appear. On June 2, 1906, there was a dramshop on the ground floor at the northwest corner of Jefferson and Chippewa streets in St. Louis, run by one Labenberger. In the basement were gas meters belonging to defendant, used in its business in measuring gas distributed to customers. One Burke was in defendant's employ as an inspector of gas meters, and on that day in his line of duty went into the basement to inspect meters, in the usual way and with the consent of the manager of the dramshop. To get to this basement, one had to open a trapdoor in the floor and descend a stairway there. Burke had never been on the premises before, and on this day, armed with a memorandum book and an electric searchlight, went into the dramshop, opened the trapdoor, went down the stairway, pulling the trapdoor to, and went about his inspecting work for 10 or 15 minutes. The size of Labenberger's barroom is dark. On its north side, extending to within about four feet of the west side, was a piece of wall furniture known as a "bar fixture." Its use is not disclosed by the record and a judicial guess in that behalf (by a Missouri court) ought to be worthless. In front of this fixture and running parallel therewith, about three feet away, extended a counter, presumably some sort of a convenience for bibulous ends. The barkeeper plied his trade between the counter and the fixture, his liquor within reach; the general public having business, if any, before, and not behind, this counter. To the west of the wall fixture, also against the north wall, was an ice box. Hard by the ice box was a door leading to a toilet room and barber shop used by the patrons of the dramshop and others. Either this door or another close-by door led into a lunchroom. Whether the lunchroom was an appendage or independent of the barroom we do not know, but at any rate, the door was used to enter the lunchroom from the dramshop. The arrangement outlined was such that a small part of the barroom in the northwest corner is called a "passageway," say, four feet wide, for use in going to the toilet, to the barber shop, or to the lunchroom. This passageway was not partitioned or walled off, but was bounded on the west by the west wall of the room and on the east partly by the ice box, the end of the bar fixture, and end of the counter. On the south it opened into the lobby of the dramshop, and either on the north or west of the passageway was said door or doors. The trapdoor was six or seven feet long, about three feet wide, and extended about 20 inches into this passageway, running east between the bar fixture and counter for four or five feet, covering the whole of that space. The trapdoor opened from north to south. There was a sign in front of the dramshop indicating that a "pay telephone" was inside. Repairs in the barroom and the putting in of a new ice box caused the telephone to be taken from the wall. At the time in hand, it was screwed to a board, and this board was either reclining against the wall in the passageway or was on a common chair close by the ice box. There is not a particle of evidence that Burke, a stranger to the premises, knew there was a pay telephone used by the public or patrons of the dramshop, or knew of the use of the passageway to the toilet, the lunchroom, or barbershop, or saw the detached telephone by the wall or in the chair. To raise this trapdoor, one had to go around the west end of the counter, behind it, and to the east end of the trapdoor. When the trapdoor was up, the hole in the floor, as said, took up the entire space for several feet between the counter and the wall fixture, so that no one could come from or go behind the counter without putting the door down, and when any one came up from the basement, opening the trapdoor to go out, he would find himself behind the counter shut in by the hole, and would have to put the door down as part of the floor before he could get out into the lobby of the barroom and go his way. So, when the trapdoor was up, there was an opening of 20 inches in the passageway. Some of plaintiff's evidence is to the effect that plaintiff was already in the barroom when the gas inspector came in, opened the trapdoor, and went into the basement, shutting the door after him. Other evidence of his is to the effect that the inspector was in the basement when plaintiff entered the dramshop. Be that one way or the other, it was in the middle of the afternoon. The barroom was flooded by the full light of a summer's day, and there was nothing to hinder any one seeing all there was to see. Two friends of plaintiff were in the barroom. It seems all three went in together. Plaintiff was a patron of the place now and then, but whether he loitered at the counter in this instance is not clear. He had used the phone once before that day, and this time came in to telephone for one of his said friends about a school entertainment. Presently he went to the west end of the counter to said chair,...