Bender v. Weber

Missouri Court of Appeals

Bender v. Weber

121 S.W. 385, 138 Mo. App. 537, 1909 Mo. App. LEXIS 418

DecidedJuly 6, 1909

StatusPublished

This text of 121 S.W. 385 (Bender v. Weber) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bender v. Weber, 121 S.W. 385, 138 Mo. App. 537, 1909 Mo. App. LEXIS 418 (Mo. Ct. App. 1909).

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Opinions

NORTONI, J.

Referring to. the facts stated by our learned associate, the Presiding Judge, in the opinion tendered by him for adoption by the court: I find myself wholly unable to concur in the conclusions of law pronounced upon these facts. The view I have taken of this case and the doctrine of the opinion tendered may be properly presented in a memorandum as follows:

I am persuaded that it was proper to send the case 'to the jury. The girl testified that while she knew the areaway was there, she had not noticed it was so close to the door, and it was not such a place as a person of ordinary prudence would not go near. The opinion holds that the plaintiff should be declared guilty of contributory negligence as a matter of law for the reason the girl knew of the areaway. Now the mere fact of knowledge touching a danger of this kind is not .of itself sufficient to operate negligence as a matter of law. This idea runs through all the decided cases in this State, as I understand them. Indeed, it has been expressly decided in a case where a lady walked off an embankment and it appeared she was familiar therewith. It is said in that case that the mere fact a person had previous knowledge of a defect or hole in the ground is not conclusive evidence of negligence if she afterwards walked into the same. The fact should be submitted to the jury with the other evidence, for them to ascertain whether the party exercised that degree of care which would be exercised by an ordinarily prudent person under the circumstanced. [See Smith v. St. Joseph, 45 Mo. 449.]

And this too is the doctrine of the case of Buesch[545]*545ing v. St. Louis Gas Light Co., 73 Mo. 219, cited in the opinion. I do not understand that portion of the Buesching case quoted by Judge Reynolds to be the doctrine of that case; that is, the nub of the case. The portion relied upon in the present instance as pointing this plaintiff guilty of contributory negligence as a matter of law, is where Judge Hough says in the Buesching case, as follows: “So that if it were essential in order to sustain the demurrer to the evidence, that it should appear to the court at the conclusion of plaintiff’s case that the deceased had knowledge of the opening in question, inasmuch as such knowledge could only appear by way of inference in favor of the defendant from facts which were proven, the demurrer could not be sustained.” Now the opinion reason's as though Judge Hough implied by these remarks that if it appeared plaintiff had knowledge of the opening she co,uld not recover. In fact, those remarks were only preliminary and did not purport to state the law of the case. The law of the Buesching case on the question of prior knowledge of the opening, is stated on top of page 232. In discussing the question of a defect or nuisance in or near a highway, and what influence prior knowledge on the part of the plaintiff should have in such case, Judge Hough states the law on page 232, as follows: “In the latter case, no person is required to abandon a convenient or customary route of travel in a city because of dangerous excavations near the highway, unless the use of the way under such circumstances would be inconsistent with the exercise of reasonable and ordinary care. [Barton v. Springfield, 110 Mass. 131; Snow v. Provincetown, 120 Mass. 580.] And a traveler, if injured thereby, may recover, notwithstanding his knowledge of the existence of the nuisance, provided he was at the time using ordinary care. [Smith v. City of St. Joseph, 45 Mo. 499; Thompson on Negligence, p. 1203, 4, 5, 6, secs. 52 and 53; Shearman [546]*546& Redfield on Neg. sec. 414.]” It therefore appears that the Bnesching case approves the doctrine of Smith v. St. Joseph, 45 Mo. 499, and that it asserts the doctrine that mere knowledge of itself is not sufficient to charge a party with contributory negligence. In fact, this doctrine runs through all of the cases on the law of negligence, as I understand it. And at page 233, Judge Hough, in speaking of the fact that if Buesching knew of the areaway in the sidewalk, says: “The law is that the deceased was guilty of negligence” if he knew it and did not avoid it, “provided he could have avoided it by the exercise of ordinary care.” The result of the authority is, then, as I understand it, this: that knowledge of the areaway is not sufficient to charge the plaintiff with contributory negligence as a matter of law. Therefore, the only question for determination is whether plaintiff would have avoided falling into it by exercising ordinary care on her part. I think that question, in view of the situation, and in view of the plaintiff’s testimony that she did not notice the areaway Avas so close to the door, under the circumstances surrounding the case, ought to be decided by a jury. The circumstances which more or less influence this conclusion, are: first, that the areaway was not a place of imminent and great danger; that is, it was an ordinary affair about Avhich and near which persons of ordinary prudence frequently go. In this respect, the case is distinguishable from those which present imminent and threatening dangers which all persons of ordinary prudence know are likely to entail injuries. For instance, if this were a coal shaft fifty or one hundred feet deep and unprotected, I Avould say that a person was guilty of contributory negligence as a matter of law for thus inattentively moving about it. But as it was only a small areaway, about which people move or go, it does not present that feature of glaring and imminent danger which is essential under our decisions to infuse the element of negligence as a matter of law. [547]*547For the distinction which obtains with respect to declaring negligence as a matter of law and a question for the jury, see Garaci v. Hill-O’Meara Const. Co., 124 Mo. App. 709; Huhn v. Mo. Pac. Ry. Co., 92 Mo. 446, 447. This was not a place of great and imminent dangers, bnt it was an ordinary affair about which prudent persons moved with more or less carelessness believing it safe to do so. If the danger is one which a prudent person will move about, believing that by the exercise of even great care they are safe in so doing, the question is for the jury. [See Huhn v. Mo. Pac. Ry. Co., 92 Mo. 477.]

Since writing the foregoing memorandum, Judge Goode has directed me to note him as concurring in the view therein expressed, and suggested that it be filed as the opinion of the court.

As to the other arguments in the brief, it is sufficient to say that we have examined the questions presented and do not find sufficient error in the record to warrant a reversal. In this connection, we invite attention to our statute (sec. 865, R. S. 1899, sec. 865, Mo. Ann. St. 1906), providing as follows: “The Supreme Court, or courts of appeals, shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action.” Judge Goode concurring, the judgment will be affirmed.

Judge Reynolds is of the opinion the decision is in conflict with the opinion of the Supreme Court in Buesching v. St. Louis Gas Light Co., 73 Mo. 219. It is therefore ordered that the cause be transferred to that court for final determination.

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NORTONI, J.

Referring to. the facts stated by our learned associate, the Presiding Judge, in the opinion tendered by him for adoption by the court: I find myself wholly unable to concur in the conclusions of law pronounced upon these facts. The view I have taken of this case and the doctrine of the opinion tendered may be properly presented in a memorandum as follows:

I am persuaded that it was proper to send the case 'to the jury. The girl testified that while she knew the areaway was there, she had not noticed it was so close to the door, and it was not such a place as a person of ordinary prudence would not go near. The opinion holds that the plaintiff should be declared guilty of contributory negligence as a matter of law for the reason the girl knew of the areaway. Now the mere fact of knowledge touching a danger of this kind is not .of itself sufficient to operate negligence as a matter of law. This idea runs through all the decided cases in this State, as I understand them. Indeed, it has been expressly decided in a case where a lady walked off an embankment and it appeared she was familiar therewith. It is said in that case that the mere fact a person had previous knowledge of a defect or hole in the ground is not conclusive evidence of negligence if she afterwards walked into the same. The fact should be submitted to the jury with the other evidence, for them to ascertain whether the party exercised that degree of care which would be exercised by an ordinarily prudent person under the circumstanced. [See Smith v. St. Joseph, 45 Mo. 449.]

And this too is the doctrine of the case of Buesch[545]*545ing v. St. Louis Gas Light Co., 73 Mo. 219, cited in the opinion. I do not understand that portion of the Buesching case quoted by Judge Reynolds to be the doctrine of that case; that is, the nub of the case. The portion relied upon in the present instance as pointing this plaintiff guilty of contributory negligence as a matter of law, is where Judge Hough says in the Buesching case, as follows: “So that if it were essential in order to sustain the demurrer to the evidence, that it should appear to the court at the conclusion of plaintiff’s case that the deceased had knowledge of the opening in question, inasmuch as such knowledge could only appear by way of inference in favor of the defendant from facts which were proven, the demurrer could not be sustained.” Now the opinion reason's as though Judge Hough implied by these remarks that if it appeared plaintiff had knowledge of the opening she co,uld not recover. In fact, those remarks were only preliminary and did not purport to state the law of the case. The law of the Buesching case on the question of prior knowledge of the opening, is stated on top of page 232. In discussing the question of a defect or nuisance in or near a highway, and what influence prior knowledge on the part of the plaintiff should have in such case, Judge Hough states the law on page 232, as follows: “In the latter case, no person is required to abandon a convenient or customary route of travel in a city because of dangerous excavations near the highway, unless the use of the way under such circumstances would be inconsistent with the exercise of reasonable and ordinary care. [Barton v. Springfield, 110 Mass. 131; Snow v. Provincetown, 120 Mass. 580.] And a traveler, if injured thereby, may recover, notwithstanding his knowledge of the existence of the nuisance, provided he was at the time using ordinary care. [Smith v. City of St. Joseph, 45 Mo. 499; Thompson on Negligence, p. 1203, 4, 5, 6, secs. 52 and 53; Shearman [546]*546& Redfield on Neg. sec. 414.]” It therefore appears that the Bnesching case approves the doctrine of Smith v. St. Joseph, 45 Mo. 499, and that it asserts the doctrine that mere knowledge of itself is not sufficient to charge a party with contributory negligence. In fact, this doctrine runs through all of the cases on the law of negligence, as I understand it. And at page 233, Judge Hough, in speaking of the fact that if Buesching knew of the areaway in the sidewalk, says: “The law is that the deceased was guilty of negligence” if he knew it and did not avoid it, “provided he could have avoided it by the exercise of ordinary care.” The result of the authority is, then, as I understand it, this: that knowledge of the areaway is not sufficient to charge the plaintiff with contributory negligence as a matter of law. Therefore, the only question for determination is whether plaintiff would have avoided falling into it by exercising ordinary care on her part. I think that question, in view of the situation, and in view of the plaintiff’s testimony that she did not notice the areaway Avas so close to the door, under the circumstances surrounding the case, ought to be decided by a jury. The circumstances which more or less influence this conclusion, are: first, that the areaway was not a place of imminent and great danger; that is, it was an ordinary affair about Avhich and near which persons of ordinary prudence frequently go. In this respect, the case is distinguishable from those which present imminent and threatening dangers which all persons of ordinary prudence know are likely to entail injuries. For instance, if this were a coal shaft fifty or one hundred feet deep and unprotected, I Avould say that a person was guilty of contributory negligence as a matter of law for thus inattentively moving about it. But as it was only a small areaway, about which people move or go, it does not present that feature of glaring and imminent danger which is essential under our decisions to infuse the element of negligence as a matter of law. [547]*547For the distinction which obtains with respect to declaring negligence as a matter of law and a question for the jury, see Garaci v. Hill-O’Meara Const. Co., 124 Mo. App. 709; Huhn v. Mo. Pac. Ry. Co., 92 Mo. 446, 447. This was not a place of great and imminent dangers, bnt it was an ordinary affair about which prudent persons moved with more or less carelessness believing it safe to do so. If the danger is one which a prudent person will move about, believing that by the exercise of even great care they are safe in so doing, the question is for the jury. [See Huhn v. Mo. Pac. Ry. Co., 92 Mo. 477.]

Since writing the foregoing memorandum, Judge Goode has directed me to note him as concurring in the view therein expressed, and suggested that it be filed as the opinion of the court.

As to the other arguments in the brief, it is sufficient to say that we have examined the questions presented and do not find sufficient error in the record to warrant a reversal. In this connection, we invite attention to our statute (sec. 865, R. S. 1899, sec. 865, Mo. Ann. St. 1906), providing as follows: “The Supreme Court, or courts of appeals, shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action.” Judge Goode concurring, the judgment will be affirmed.

Judge Reynolds is of the opinion the decision is in conflict with the opinion of the Supreme Court in Buesching v. St. Louis Gas Light Co., 73 Mo. 219. It is therefore ordered that the cause be transferred to that court for final determination.

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121 S.W. 385, 138 Mo. App. 537, 1909 Mo. App. LEXIS 418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bender-v-weber-moctapp-1909.

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