40 Mo. 131 | Mo. | 1867
delivered the opinion of the court.
The plaintiff brings this suit under the provisions of the “Act concerning damages”—R. C. 1855, p. 647. The substance of the complaint was, that the defendants, carrying on the business of merchants in a general house-furnishing store in the building No. 125 North Fourth street, in the city of St. Louis, and whilst the plaintiff’s husband was employed in repairing a sewer in the cellar of the building and was lawfully passing and repassing through the same in and about his business, negligently, carelessly and wrongfully placed three large jars in said cellar, two of them containing water and one containing a deadly liquid poison, which said jar of poison was of similar appearance to said jars containing drinking water, with no mark or notice to indicate its contents or warn persons that it contained poison, or that its contents was not the same as those of the two other placed beside it, and that by x’eason of said gross negligence and carelessness, and wrongful acts and default of the defendants, the plaintiff’s husband, mistaking said poison for drinking water, then and there drank of the same, and was poisoned and immediately killed; and the plaintiff claimed damages to the amount of ten thousand dollars. (The statute limited the damages xxot to exceed five thousand dollars.) The answer denied that the deceased husband of the plaintiff
At the close of the plaintiff’s evidence the defendants asked the court to instruct the jury that the plaintiff was not entitled to recover on the case made. This instruction was refused. It was of the nature of a demurrer to the evidence, and will first be considered.
The facts shown by the plaintiff’s evidence may be stated thus: that defendants were merchants carrying on business in this store rented from the owners, and that these three jars, the smaller one containing liquid cyanaie of potassium and the two larger ones containing water, were used in the business for the purpose of cleansing and polishing silverware, and were usually kept in the collar; that the jar containing poison was marked poison, in letters legible enough for any one to read who should look for a label, and had a skull and cross-bones emblems on the corner; that the deceased was employed, not by defendants, but by a contractor under an agent of the proprietors of the building, who had charge of repairs, and that they were allowed to pass through the store down into the cellar, through a basement and into an area, where a sewer was undergoing repairs ; that when the work on the sewer began in the front area of the cellar, where stood a hydrant with a cup for drinking, these large earthen jars were standing against the wall of the basement, not far from the hydrant, but were removed out of the way of the workmen, before the deceased came into the cellar, by a person connected with the store, and taken into the basement part of the cellar and placed among some goods piled up there, a few feet to one side of the passage leading through the basement to the stairs which ascended into the store a-^ove, and where a laborer passing up and down about his business would not be likely to notice them particularly, \inless he went out of his way to examine them ; that the deceased had been en
It is plain from the evidence, though not clearly shown by the petition, that the defendants and the deceased stood in no particular relation, or privity, with each other, but were in the simple position of strangers. The case, therefore, must be considered as falling under the principle of the general maxim, sic utere tuo ut alienum non Iceclas. The cause of action is founded on alleged negligence of defendants, and the very gist of the action is that the negligence of the de-* fendants caused the accident and produced the injury. The burden of proof is on the plaintiff, and if there be no evidence sufficient in law to make a prima facie case on this issue, plaintiff cannot be entitled to recover—Smith v. Hann. & St. Jo. R.R. Co., 37 Mo. 287; Boland v. Mo. R.R. Co., 36 Mo. 491.
It is to be observed, in the first place, that the evidence disproves a part of the allegations or assumptions of the petition. It not only fails to show that the deceased was employed by the defendants, or specially permitted by them to be there, or that he had any lawful occasion to meddle with those jars, or that the jars were placed in the cellar for any purpose of injuring trespassers or others, or were put where they were with any other reference whatever to the deceased than to place them out of the way of the workmen employed there, or that they were without visible marks indicative of poison, or that the deceased supposed the jars to contain water for drinking; but rather proves, or tends to prove, the direct contrary of all this.
The question to be determined is, whether as a matter of law, admitting all the facts and circumstances to be true
. The existence of negligence is a fact to be pi-oved, and for the jury to determine, when there is any competent evidence tending to prove it. But the question, what constitutes that fact, in any given case ? or rather, what other facts and circumstances, being proved, amount to evidence of the existence of the main fact in issue, or tend to prove it ? is, and must be, a question of law. Negligence is a thing which by its very nature pertains to human conduct, and the action of the mind and will. It is a something, invisible, intangible, and for the most part incapable of direct proof, like sensible facts, or physical events. It is, in general, a matter of inference from other facts and circumstances which adznit of direct proof, and which may raise a presumption of the truth of the main fact to be proved. These facts and circumstances must be such as would warrant a jury in inferring from them the fact of negligence, by reasoning in the ordinary' way, according to the natural and proper relations of things,
It has been decided, also, that it is proper for the defendant to take the judgment of the court on the plaintiff’s evidence by an instruction of this kind. The plaintiff cannot be directly compelled to take non-suit; but if he will insist upon going to the jury, the court may instruct them, in such case, that there is no sufficient evidence before them to sustain the plaintiff’s action, and that they will find a verdict for defendant—Clark v. Hann. & St. Jo. R.R. Co., 36 Mo. 216.
With reference to the defendants, it appears that this poisonous liquid was intended for ordinary use in their business, and was kept in the cellar, where no other persons than those employed about the store were ordinarily permitted to go, or were in the habit of going. Where a man built a hayrick of green grass near to another’s land, knowing it would probably take fire, and saying he would take the chance, it was held that an action would lie, for he knew, or had reason to believe, it might do damage to his neighbor. Where a shopkeeper invited customers to his store and left a trapdoor open where he might expect they would fall into it, that was held to be negligence. What reason had these defendants to expect that anybody would drink out of this .jar ? It was
On the supposition that it would be a matter of fact of which the jury were to be left to judge, under all the facts and circumstances, whether the conduct of the defendants had been such as would ordinarily be expected of careful and prudent men in like case, and that the jury might, by any rational probability, have found that there had been some slight degree of negligence on their part, it is still perfectly clear, on this evidence, that any such negligence must have been, and wás, only the remote cause of the accident and injury, and it is still to be considered what was the immediate and proximate cause of this very singular mischance.
It is evident that this laborer had no business to be meddling with those jars ; that he must have turned aside out of his way to reach them ; that he had a mere privilege of passing to and fro through the basement on this special occasion, and was a trespasser upon the property of another ; that if he really drank of that poison (as would seem to be highly probable), he did so without the least examination for marks on the jar or on the cover; that there were marks on both, indicative of poison, and which would have been a sufficient warning for any one that had looked for them ; that he might have avoided all danger by the exercise of that ordinary care which might reasonably be expected of any person of common sense and prudence in his situation; and, in short, that he was himself guilty of gross negligence and reckless imprudence.
It is suggested that he supposed the jars to contain water for drinking. The evidence affords no substantial grounds for this hypothesis, but rather shows the contrary. It distinctly appears that there was a hydrant standing in the area
The result is that the plaintiff’s evidence failed to make out a prima facie case of liability against the defendants, and the jury should have been instructed that the plaintiff was not entitled to recover.
Reversed and remanded.