Appeal
from St. Charles Circuit Court.
Action
for damages. The substantial portion of the petition is as
follows:
"That
heretofore, to wit, in the month of , 1887, she was engaged
by Erwin Spraul, then husband of defendant, but since
deceased, as a cook at his residence, and that she continued
in her said employment for said Spraul until about the first
day of June, 1889; that while she was thus engaged, she was
under the direction and control of defendant, the wife and
agent of said Erwin Spraul.
"And
plaintiff further states, that, heretofore, to wit, on the
eighth day of May, 1889, and while in the service aforesaid
and performing the duties as cook as aforesaid, under
defendant's directions, defendant carelessly and
negligently ordered plaintiff to climb up a ladder and into
the pigeon loft, which occupied the upper portion of a shed
situated in the rear yard of said Spraul's then
residence, number 3040 South Ninth street, in the city of St
Louis, and fetch some pigeons therefrom, defendant well
knowing that it was dangerous for a woman to climb into said
loft, and well knowing that the ladder was supplied for that
purpose, and which she directed plaintiff to use, was not
adapted to that use, but by reason of its length could not be
used in climbing into said loft with safety; that defendant
knowing the dangerous character of the task she assigned
plaintiff, and that the ladder furnished for performing it
was not adapted for such use, but unsafe and dangerous for
such purpose, nevertheless negligently commanded plaintiff to
climb into said pigeon loft.
"Plaintiff
further states that, in attempting to comply with said
command and climb up said ladder into said loft, having
ascended said ladder to the height of the opening into said
loft, and while attempting to enter said opening, she
plaintiff, owing to the improper length of said ladder, fell
therefrom to the ground below, thereby fracturing her hip
bone in such a manner that she was confined to her bed for
many weeks and will be permanently crippled. Plaintiff
further states that she has suffered great pain of body and
mind since the happening of said accident, has been prevented
from following her occupation and put to great expense for
medicine and medical attendance, all as a result of said
accident.
"Wherefore
plaintiff prays judgment against defendant for $ 20,000 and
her costs."
The
answer was in effect a general denial coupled with a plea of
contributory negligence. The reply was also in substance a
general denial of the allegations of the answer.
Plaintiff's
testimony is substantially this:
"I
am the plaintiff. I know Mrs. Gruen; I worked at her house in
St. Louis. * * * I began working December 13, 1887; worked
two years and five months up to the time I was hurt. Just
before I was hurt she said: 'Anna, go up and get down the
pigeons, so that grandmother can clean them before she washes
the dishes.' I went there. I stood the ladder as always
and as I wanted to enter I lost my hold and fell. * * * The
step of the ladder did not fit with the entrance. I had to
stand the ladder against the smaller shed. The right side of
the ladder was on the north side of the big shed. The top of
the ladder extended over the little shed. The door when open
did not go back against the shed; a little platform the
pigeons sat on was there. Mrs. Spraul had sent me up the
ladder before. She asked me why I did not stand the ladder
over further, and said I would fall down there some time. I
told her I could not stand it any other way because the
ladder did not fit. * * * I used the ladder from which I fell
about four or five times. It was the height of the big shed.
This was the only ladder about for the purpose of climbing
into the shed.
"The
ladder was made in the brewery. * * * I got the pigeons out
of the loft four or five times a year. Mrs. Spraul had the
ladder made for the purpose of getting the pigeons out. It
was not used much otherwise. There was an old ladder there at
first; it went to pieces. I have told all Mrs. Spraul said
about getting the pigeons. * * * I got the ladder from a
corner on the north side of the lot, and set it up against
the shed just the same as I always did. Mrs. Spraul did not
tell me how to set it up. I set it up the best way I could. I
had to crawl into the opening. I did not get quite to the
opening. I opened the door the same as I had always done
before. I had to lean over diagonally. It is about a good
step. I had made that step as often as I went up. I took hold
of the door. * * * I lost the hold of my hands and feet. When
I was off the ladder and wanted to enter the opening, I lost
my hold of the loft at the opening. I stood on the ladder and
put my hands on the opening; I wanted to step into the hole,
and in so doing I lost my hold on the loft and fell. I had to
get off the ladder. I had gotten off the ladder and got on
the pigeon loft. * * * I fell on the bricks, not on the wood
lying there. I was hanging by my hands from the bottom of the
loft and fell down. From the bottom of the opening where I
laid my hands to the walk was about eleven feet. * * * I did
the best I could. Nobody told me how to enter. I am thirty
years of age. The ladder was new. * * * I could not help
letting loose. I held on as long as I could. I called to no
one to help me. * * * When I went up there I did not know I
was going to fall down or I would not have went up there. I
just noticed that it was dangerous after I had fallen down. I
did not take any notice of whether the ladder was perfectly
good to do that thing with or not.
"The
old ladder was better. I could put that under the opening and
get right into the loft. The other ladder I had to stand at
this place and get in sideways. The old ladder broke and the
new one was made. There was a step ladder there but I could
not use it for this purpose; it was seven or eight feet long
and was used to clean the windows. The top of the ladder when
I fell from it, rested against the small shed, which was
seven inches from the opening. With the ladder placed
similarly I went into the loft four or five times. I used the
ladder in the same way. If I had had a ladder which I could
have placed under the opening, I could have gone in that way.
"The
Court: State what caused the accident this time. Answer. I
lost my hold; I caught hold of the opening with my hands and
my hands slipped. I held myself in the corner, in the bottom
of the opening at the side and bottom. I had to go in with my
head first. I wanted to put my hands in the corner of the
opening, slip in my head and body in that way. That was the
way I always did. I tried it this time, but my hands slipped
and I fell down."
There
was evidence that immediately after the accident, defendant
sent another female servant after the pigeons, and that she
went up the same ladder and got them. There was evidence also
that other servants had used the same ladder in getting
pigeons down from the loft; that Erwin Spraul, the deceased
husband of defendant had the new ladder made; that after
plaintiff had fallen as aforesaid, defendant had ordered the
top of the ladder to be cut off, which was done; that the
ladder was higher than the big shed; that the bottom of the
opening into the shed where the pigeons were, was eleven feet
one inch; that the plaintiff's father, some six weeks
before she fell, had told defendant that the ladder "was
dangerous," but did not say in what respect; that the
main shed was sixteen feet, two and one half inches high, and
the lower shed was twelve feet, ten inches high and distant
about eleven inches from the taller shed where the pigeons
were.
At the
close of evidence for plaintiff, defendant asked an
instruction in the nature of a demurrer to the evidence,
which was refused.
Thereupon,
on part of defendant, evidence of one witness was introduced
that plaintiff said to her a short time after the accident,
"I fell, unluckily. I have gone up the ladder so often
to get pigeons and nothing happened, and on this day I had to
be unfortunate, but I can not blame anybody."
Another
witness testified that he asked plaintiff about the matter:
"What did you do? and she said, I and Susan had made
humbug in the yard; I made a false step and fell down; she
further said, I can't blame anybody." Two other
witnesses testified to similar statements made by plaintiff
as that testified to by the first witness for the defense.
Part of this testimony plaintiff denied, to wit: that she
admitted she had said it was her own fault and she did not
blame anybody; but as to the testimony of two witnesses that
she had "made humbug in the yard" etc., she merely
said, "I do not remember talking about this
accident," etc.
Defendant
testified that plaintiff was making fun with Susan (the other
hired girl) by putting her foot out and while making fun made
a false step and fell. This testimony of defendant's was
not denied by plaintiff. Defendant also testified that on one
occasion she "used the ladder in fun to look into the
loft."
Erwin
Spraul died before this suit was instituted. It did not
appear that defendant had any means or estate of her own at
the time of the accident, nor at what time the ladder was
sawed off. The jury returned a verdict for plaintiff for $
3,000, and defendant appeals.
This
cause has been here once before, and is reported in 114 Mo.
551. The facts however were not as fully developed heretofore
as at the present time.
Reversed.
Broadhead & Hezel and H. A. Haeussler for appellant.
(1)
There was no evidence to warrant the court permitting the
case to go to the jury under the pleadings and
respondent's own evidence. Appellan...
