Waldmann v. Skrainka Construction Company

• Decision Date: 06 February 1923
• Citation: 249 S.W. 698,211 Mo.App. 576
• Parties: SAMUEL WALDMANN, Respondent, v. SKRAINKA CONSTRUCTION COMPANY, a Corporation, Appellant
• Court: Missouri Court of Appeals

249 S.W. 698

211 Mo.App. 576

SAMUEL WALDMANN, Respondent, v. SKRAINKA CONSTRUCTION COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, St. Louis

February 6, 1923

Appeal from the Circuit Court of the City of St. Louis.--Hon. M Hartmann, Judge.

REVERSED.

Judgment reversed and cause remanded.

M. U Hayden for appellant.

(1) Respondent is not entitled to recover in this case, and this judgment should be reversed without remanding the cause for another trial, for the following reasons: (a) The evidence wholly fails to establish any of the allegations of negligence in the petition, and likewise wholly fails to establish any negligence on the part of appellant resulting in the injuries sustained by respondent's wife. Bowman v. Car & Foundry Co., 226 Mo. 53; Chrismer v. Telephone Co., 194 Mo. 189; Hesslbach v. St. Louis, 179 Mo. 505. (b) The evidence wholly fails to establish any causal connection between any of the acts of negligence alleged in respondent's petition and the injuries sustained by respondent's wife. Stagg v. Coffee Co., 169 Mo 489; Purcell v. Shoe Co., 187 Mo. 276; Harper v. Terminal Co., 187 Mo. 575; Kane v. Railroad Co., 121 Mo. 258; Waldmann v. Skrainka Construction Co., 233 S.W. 242; Cadwell v. Stove Co., 238 S.W. 415; Goransson v. Mfg. Co., 186 Mo. 300; Strother v. Railroad Co., 188 S.W. 1102; Swearingen v. Railroad Co., 221 Mo. 644. (c) If, as contended by respondent, Mrs. Waldmann's fall was accidental, and was due to her catching or striking her foot upon the edge of the sidewalk, it was nevertheless the direct result of her own failure to exercise ordinary care for her safety while performing the act of stepping from the alley to the sidewalk. Wheat v. City of St. Louis, 179 Mo. 572; Ryan v. Kansas City, 232 Mo. 471; Welch v. McGowan, 260 Mo. 709; Coffey v. City, 186 Mo. 573; Solomon v. Duncan, 194 Mo.App. 517; Waldman v. Skrainka Construction Co., 233 S.W. 242; Mockowik v. Railway, 196 Mo. 550. (2) Even though the court may not be convinced that appellant is entitled to a reversal of the judgment outright, said judgment should, nevertheless, be reversed and the cause remanded for another trial for the following reasons: (1) The trial court erred in admitting over the objection of appellant the ordinance mentioned in the petition, same being Ordinance No. 30013, section 1139. The language of the ordinance plainly indicates that it is not applicable to a situation like the one here involved, since Mrs. Waldmann did not fall into the alley, and the evidence showed absolutely no causal connection between the failure of appellant to comply with said ordinance and the injuries sustained by Mrs. Waldmann. Kane v. Railroad Co., 251 Mo. 13; Harper v. Terminal Co., 187 Mo. 575; Purcell v. Shoe Co., 187 Mo. 276; Stagg v. Coffee Co., 169 Mo. 489; Roper v. Greenspon, 192 S.W. 149. (2) The trial court erred in overruling appellant's motion to discharge the jury and to declare a mistrial because of the conduct of the witness Nettie Japps while upon the witness stand. (3) The trial court erred in refusing to give and read to the jury instruction "C," requested by appellant, withdrawing from the consideration of the jury all reference to the city ordinance referred to above. See authorities cited under paragraph (1), subdivision 2. (4) The trial court erred in refusing to give and read to the jury instruction "A," requested by appellant. No duty was imposed by law upon appellant to illuminate the street in the vicinity of this alley, or to so illuminate the alley as to prevent injury to pedestrians, and respondent offered no testimony tending to establish negligence in that respect. (5) The trial court erred in refusing to give instruction "D," requested by appellant. Crane v. Street Railway, 246 Mo. 393; Cohn v. City, 108 Mo. 387; See authorities cited under paragraph (1), subdivision 2. (6) Because the trial court erred in giving and reading to the jury instructions numbered 1 and 2, at the instance of respondent. Instructions numbered 1 and 2 purported to cover the case for respondent and to submit his theory of liability and to direct a verdict in his favor. DeGonia v. Railroad, 242 Mo. 564; Parker v. Drake, 220 S.W. 1000; State ex rel. v. Ellison, 270 Mo. 645; State ex rel. v. Ellison, 272 Mo. 571; James v. Mott, 215 S.W. 913; Lorton v. Trail, 216 S.W. 54; Hall v. Coal & Coke Co., 260 Mo. 351; Bergfield v. Railways Co., 227 S.W. 106; Stumpf v. United Railways Co., 227 S.W. 852. (7) The trial court erred in giving and reading to the jury instruction No. 3, at the instance of respondent. Waldman v. Skrainka Construction Co., 233 S.W. 242 (and cases cited); O'Neil v. City of St. Louis, 239 S.W. 94 (and cases cited). (8) The trial court erred in giving to the jury instruction No. 4. Bank v. Baker, 193 S.W. 632; Forsee v. Zenner, 193 S.W. 975. (9) The trial court erred in reading to the jury instruction No. 5, at the instance of respondent, as that instruction submitted to the jury allegations of damage not established by the evidence. Brown v. Planing Mill Co., 217 S.W. 332; Moses v. Klusmeyer, 194 Mo.App. 634. The verdict in this case is excessive, and so excessive as to indicate prejudice on the part of the jury toward appellant, and to warrant another trial. Varley v. Taxicab Co., 240 S.W. 218 (and cases cited).

Sale & Frey and Charles M. Hay for respondent.

BECKER, J. Allen, P. J., and Daues, J., concur.

OPINION

BECKER, J.

--Defendant appeals from a judgment for $ 5750 recovered by plaintiff against the defendant on account of the loss of the society and services of his wife for injuries suffered due to the alleged negligence of the defendant.

It appears that on July 7, 1918 the defendant, under a contract with the city of St. Louis, was constructing a public alley running east and west parallel to and between Wells and Ridge avenues in said city; that the eastern end of the said alley intersected the west sidewalk of Hamilton avenue extending from the building line to the curb of said Hamilton avenue; that the defendant in constructing the alley removed the granitoid sidewalk at said intersection of the alley and the west sidewalk of Hamilton avenue for the width of the alley, namely, fifteen feet. At this point the alley had been dug to a depth of eleven inches for the width of the said sidewalk. The bed of the alley had been completed and was admittedly level and smooth. This excavation at the time plaintiff's wife met with her injuries was eleven inches deep--that is eleven inches below the surface of the granitoid sidewalk. This said excavation was fifteen feet wide, namely, the width of the alley, and about twelve to fifteen feet long, namely, the distance from the curb to the property line. The granitoid sidewalk, which in itself was six feet wide, was cut across east and west along the line of the excavation straight down or perpendicular at each side of said excavation and the edges of the sidewalk thus cut were left exposed and were part of the north and south side of the excavation.

It is uncontroverted that at a point about where the alley joined the street pavement and in about the center of the excavation there was one red light burning. Defendant admits that there was no fence across the alley at either side thereof nor any cover or boards placed over the excavation from one sidewalk to the other and that the defendant had employed no watchman to warn or escort pedestrians across said alley.

Mrs. Waldmann, plaintiff's wife, a woman somewhat over sixty years of age, had attended a picture show on the evening in question at a point north of the said alley. At the conclusion of the performance she happened to meet her maid servant, Nettie Japps, and Mrs. Waldmann, together with the maid, started to walk to plaintiff's home which was some distance south and west of the alley under construction described above.

As Mrs. Waldmann and her maid walked south along Hamilton avenue and arrived at the north side of this alley both of them stepped from the sidewalk into the excavation in safety and walked southwardly across the alley in safety, the maid being directly ahead of Mrs. Waldmann. Upon reaching the south side of the alley the maid stepped from the bed of the alley to the sidewalk in safety and just as she had done so she heard Mrs. Waldmann scream and upon looking around found that Mrs. Waldmann had fallen onto the sidewalk on the south side of the alley and was lying there with her feet extending into the alley.

The following questions were asked and the following answers given during the examination of Mrs. Waldmann's maid testifying as a witness for plaintiff:

"Q. Now, when she fell there, did you do anything to ascertain why she fell? A. I wanted to find out what caused her to fall."

"Q. What did you do? A. I felt on the side and there was a stem sticking out of the sidewalk real pointed."

"Q. You say there was a sharp piece of sidewalk sticking out? A. Yes, sir."

"Q. Can you tell us from this picture about where Mrs. Waldmann was when she fell? Look at it and see if you can tell us."

"Mr. Hayden: Have her mark it."

"Mr. Frey: It is already marked (pointing to where the 'O' is on the picture)."

"Q. You say it was about where that 'O' is? A. Yes, sir."

At the said point marked "O" in the photograph of the alley taken after the said alley had been paved, and which photograph was introduced as an exhibit by plaintiff, which point was at the southeast corner of the granitoid sidewalk at the south side of the excavation of the alley, a small piece of the granitoid sidewalk was broken off. According to the maid's testimony Mrs. Waldmann's feet, when she found her, were "right down where that 'O' is." The maid testified further that the first she knew that Mrs. Waldmann...