*1 1047 change would, course, hardship, but should not the rule. of proven competent proper been for State rebuttal to have the jury actually time, testimony Young in Illinois was at the and not present found was dance could have that he not things testimony concerning which he see about testified. But competent was his whereabouts at that time mere statements for proper until the foundation had been laid negatived plea of
It would have been better to have self-defense 1 5 requirement instructions 5. The Instruction jury “wilfully, premeditatedly should find defendant with aforethought” find shot deceased before it could
malice degree
guilty and, of murder in second find, acquit defendant, if it possibly not so was sufficient, jury because the could not have wil- found that defendant fully, premeditatedly aforethought deceased, and with malice shot But, trial, jury the shot self-defense. on another fired should required find that the was not in self-defense, also shot fired is also in another instruction. This of Instruction 1 on defined true degree although was murder, defendant convicted of murder first degree. in that subject A properly refused. The of self- Instruction
We think fully 6, given by by Instruction In- covered the court. defense refused, properly think, A we was also because it was a struction on the comment evidence. unnecessary enter into consideration pro-
We deem of the challenges priety jurors overruling Ludwig defendant’s likely upon alleged occur Bowers. Such error is one another saying, however, cannot plenty trial. We refrain are jurors qualified the trial of case like this without available necessity prospective juror forcing say that he will be able solely upon to decide the ease alone adduced at trial, spite prejudgment of a fixed and decided part guilt accused, newspaper based or innocence accounts persons tragedy other who claim or conversations with to know the facts. indicated, reversed and the errors
For the case All trial. for another concur. remanded Company, Building Equipment &
Luella v. St. Louis Newhouse (2d) 932. W. Appellant. S. 20, Two, 1930. December Division *2 ^ Polk, Campbell appellant. & Williams for Doioglas respondent. W. Robert for COOLEY, respondent Plaintiff, here, obtained verdict C. $15,000 defendant for City Court of of St. Louis Circuit personal injuries. required $5,000 The court her to remit
verdict or submit new remittitur, to a trial. She judg- made the *3 ment was entered in $10,000, her favor for from which de- appeals. fendant
Plaintiff employ was in the of stenographer defendant as a in defendant’s offices in St. Louis. These offices consisted of several rooms, one of president which was used the of defendant com- pany and Gander, vice-president. Mr. J. B. In this room plaintiff injured by stumbling falling and over the foot chair, breaking of an office her There in wrist. were the room flat-topped One, desk, three desks. Mr. Gander’s inwas the southwest room, placed corner of against the with wall and one side the west similarly against president’s one side the south The desk was wall.
placed in the northwest corner. Between two other desk these was the against with one side wall. president vice-president west and the occasionally both desk, used the a latter and window sill to the kept west of it was a papers basket which letters into to be mailed and placed. to be filed were Mr. The central desk was north of thus desk, space Gander’s and the indicates evidence there was a of about forty chair, inches between them. Mr. Gander’s the foot office over stumbled, plaintiff desk, of which was at the north and side of his therefore between it and the central desk. working
Plaintiff’s usual place room, inwas another but it was part of her duties to the examine basket above mentioned from time to time and mailing filing papers attend to of the letters and of left day injury On the of there. her in per- she went to basket the the duty, passing formance of this between Gander’s desk the one to May the north of it. It was about five o’clock on a afternoon and light good. the in the office was Plaintiff saw in no one that room when she entered and went to basket. Mr. being the Gander in then an adjoining discussing a Davenport. room business matter with Mr.
After examining papers in five spending four or minutes plaintiff
basket, turned to her steps, retrace stumbled over foot tbe fell, receiving injury of office chair and she sues. for which contention Her is that at the mail while she was absorbed her work basket, reaching Gander some entered the room and in .her, pulled on his desk and his desk unknown chair out from placed passageway north between his desk and the one of it that when she to fall turned from the she was bound basket chair, over the chair. Defendant moved denies that Gander negligence. further contends that if he did act did not constitute sufficiency sharp controversy Since there is evidence as to the necessary with some to make a case for will set part liability. bearing upon detail issue basket going to the Plaintiff testified direct examination that it; north that his passed between Gander’s desk the one (north) desk, up “right in front of his office chair was then plenty north; desk,” with back of the to the that “there through space watching; to walk while she was without facing (through west at window room she heard someone enter the desk) and, turning head, door east Gander’s saw that it was Gander; anybody room. Her not see else testimony proceeds thus: “Q. picked your papers you what do? A. I you up After my back into office. turned to
“Q. over foot of the happened? A. Then what big chair.
‘1Q. ? A. was in was the chair then It Where A. didn’t “Q. passageway? mean relation pass. room to me Q. question it still *4 That Eobert: “Mr. —was No, sir; A. it was not. the desk? way. my “Q. it then? It was in Where was A. “Q. path? A. was. Was It back chair? A. bach
“Q. In what direction was north. was ‘passed right as I away you? A. On me “Q. is, That from go east. say you up you passage, the chair was “Q. went When into the Yes, desk, south? A. sir. against Gander’s ‘‘ Yes, ? north A. sir. Q. was And the back I will got passage first, ask you from the “Q. when back And — A. you you Oh, struck chair? many before that you steps took how right it. I around struck turned sir; right Yes, you? A. it was “Q. That close it, it, you I struck I fall? A. When you did “Q. When struck something. nothing There was hold up to catch hand this threw any- I couldn’t catch hold of hold of. flat-top to catch desk protect I myself hand like this there, threw out thing chair with I fell took the roller me. (illustrating). you chair first. A.
“Q. part and what struck the You turned My foot. Yes, the chair ? A.
“Q. Struck the bottom of sir. ‘‘ you you fell, in Q. see, as which direction the back of the Could you it ? I hold chair was the time struck A. took of the back of “ you ? Q. back then A. was. Was the toward It in which back “Q. Just tell direction the of the chair was when you the chair was to the north. hit it? A. The back of
“Q. you in? was to the north when went A. was.” It It along in direct examination Further she testified that she did it; chair before she struck did not see Mr. G-ander not see the she desk; from his know pull chair out that she did before she pulled out; it had been stumbled over that she saw no one Gander; away except Mr. that she start from the room did not rush leisurely way basket, but moved she was accustomed do.
On she was asked she had testified in a cross-examination right from the deposition she turned basket and “rushed replied did out, not remember. Then followed to which questions and answers: these ‘just as I I “Q. true that turned Is it rushed out?’ A. It wasn’t hurry rushed. I was in a course. exactly
“Q. you rapidly it true turned and started to rush Is out of the rushing.” room? A. don’t think was cross-examination, on Further, ques- she testified chair in chair, big “a easy chair,” usually
tion was swivel office which stood it; desk north of previ- between Gander’s that she had desk ously pulled the desk. seen against
“Q. steps you many you How take before stumbled this chair? A. I against it at once. “Q. you you Do mean any didn’t take steps? A. 1 don’t know. quickly. just was done so turned and I stumbled . “Q. You any steps? didn’t take IA. don’t know whether 1 took
any steps, I turned and stumbled.” Proceeding, she testified that against she struck ehair the foot of the with her and in falling caught foot top of the chair with her right hand, taking the chair down with her as she fell. “Q. you When went this up occasion and to that
window, you particularly notice this chair in? A. I know plenty there was of room to up in. The chair *5 the desk. “Q. you Did particularly notice that at the time? A. No. “Q. you any special Did it observation? No; A. nothing special but, it had been in Iway, would have noticed
Í052 yon way? ever moved the chair
“Q. your Hadn’t ont of A. At any time?
“Q. had, day. A. I I Yes. Presume didn’t that “Q. get is—I trying' I am don’t What want embarrass get you particular at if you want to noticed the location of the —I you only in? No, sir; A. I thing chair when went noticed way; it was wasn’t desk. You, “Q. that? A. I I did notice know couldn’t there if ivay. inwas pushed “Q. away? You could have A. I push over, didn’t going in. . you pushed had But the chair over on other occasions? A. “Q. I Possibly, did. ‘‘ you you Q. your in there, When went had mind on these papers did; you going get, you were not? A. I “Q. thinking especially position You were not about the thinldng I especially. chair? A. wasn’t about the of the chair “Q. you your papers? had mind on But A. Yes, sir; I was get going papers.” sorting further
She said that while she was papers she heard turning noise and her head saw Mr. Gander coming into office, desk; right he his at his desk. “Q. At which entrance to his desk? A. The east side.
“Q. He came to the east end of desk? A. He came in this (illustrating), door\way like that that where I saw him. I didn’t amy look , further. “Q. you Did A. see what he did? I know he reached across to placed that I get papers some the corner. ‘‘Q. standing he Where was when he ? reached A. He was stand- by ing desk.
“Q. standing by Was he the end his desk? A. He couldn’t papers from reach those there.” Continuing questions: in answer to had told me earlier in “He put day paperg some far corner of put his desk and I
them there. Those are the in for. came He reached only papers papers. those Those were the there for him.
“Q. No, You didn’t see him touch the chair ? A. I did not. went picking up my papers. about
“Q. him You never noticed move chair? A. did not.” ours.) (Italics quoted testimony defendant, Gander, Mr. called testified that he did not move not in the room until after fell; chair and was that he and plaintiff’s Davenport heard the noise of fall and Mr. both went to Davenport, testifying deposition, her assistance. corroborated again plaintiff’s At the close of evidence and Gander. at the close *6 evidence defendant asked an all the instruction nature the in. demurrer, of which both were refused. opinion We the should are of that the demurrer to the evidence have her upon plea been sustained. the .that Plaintiff’s case rests injury through its by negligence was the act of caused defendant’s from pulling chair negligently the out
vice-president the it was when she went to desk where bis beside basket. without her pathway plaintiff “placing it the turning on fall over the same to she “was bound where knowledge,” alleged as not move the chair If G-ander did her desk.” to return to basket, through going to the passageway the passed plaintiff after negligence, to him as attributed act cannot he did so ifor pleading. her under no case has only witness who testified as was the to how the accident Plaintiff testimony out We have set her on happened. point. that She testified true, examination, it is that when through she went on direct pas- the chair “up the was sageway the basket to the desk” and that go out had been turned to moved. But taking when she testi- her mony plain that was a whole it is that but her conclusion, as based she did notice fact that the chair as the she went .in noticed, had it in her way. been She expressly would have stated “but, it as did not notice she went had it w^y that been she ’’ it. Asked if she had have noticed noticed would that it was then “I desk, go she answered: know against the couldn’t in there if it testimony So. that the was that chair was up against only to went this, desk when she amounts to basket that there pass her to between and the desk was room for north of it. It is her no means clear from that was not room for. pass chair and desk north of it between the her to when she turned go attention. paying if had been She did out she not attempt space or chair between and desk the distance at that time. The with, north, back to as when in, chair stood she went still ‘‘ go the back the chair was right, turned to her when she on right as I east.” passed of me foot which- the foot of chair. contact She did came in not see. .with Gander yet it, him 'if or notice move he did so he must touch .then very her, so close if close to that he been moved the chair have in an on the far corner of his papers desk, as to reach she implies, effort would have been action noticed her, would seem as well papers. Indeed, reaching for the reached for papers as a conclusion drawn from evidently also the fact at all is that she had testify for him. desk She papers left that she saw suggested and, above, papers she reach for the him see him them, the chair to reach had to move do so and he' she must have testify seeing noticing him the chair. She did noticed move or enough near side of his desk or north the chair Gander place only when, saw time and she him moved and was east of desk. She he came into the room testified, have reached the east side he could not (cid:127)testified again dimensions of the conclusion. The *7 desk, but that length of Gander’s “reach” if given nor he not desk are over the desk. leaned been taken and it she had deposition had testified that Plaintiff’s up as Mr. Gander came and saw him head reach to her
she turned picked paper up the and turned “he and went paper a and that get south,” him nothing she saw do to the and else. the office into testimony Gander did not move touch or the- chair. According to that deposition her not conceding is conclusive that But Wells, 89, 91; v. 293 S. W. (Gibbons upon plaintiff Davidson v. St. 169) Co., 79, 301 Mo. 256 S. giving W. and F. Railroad her Louis-S. testimony on this trial considering her without contra- the benefit trial, on a former it deposition in her and remains a dictions that pulled had been out from placed chair the desk finding that the and largely if pathway wholly upon must rest not plaintiff’s in plaintiff’s conjecture. plaintiff While on direct examina- conclusions way” “in my chair that the “didn’t tion said me room that was to her further testified as pass, she started no facts to from there are testified which appears out and that enough pass for her to space between it was not and the desk going in, done had paying had she been north of as she attention. hurriedly, thinking she started out not admits that or noticing She she stumbled chair until over position of the its foot. seems plaintiff’s in view of all of probable, evidence, much more simply foot the chair because in over the absorption position position its than failed to note she had had been permissible be to infer changed. And, if it that the chair had been further be must inferred that moved it Mr. Gander then moved it. nor in a him move it to do No saw so. one The fact that he (if fact) inferred from the a to be fact would have plaintiff saw him in the and that room and was moved saw one no least doubtful plaintiff’s We whether think else there. evidence finding a that Gander to sustain is sufficient moved the chair. if it conceded makes But be submissible ease on discussed, her case fails in question above another respect. Even chair his doing move the act if Gander did cannot be character reasonably as negligence prudent as unless man ized he should have might thereby injury plaintiff. result to anticipated In Ameri Talbot, 674, 684, 42 Brewing v. Mo. S. 679, can Assn. W. the court Negligence Ray Imposed quotes approvingly Duties, pages follows: 133, 134,
‘ ‘1 might inquiry whether been proper is not the accident The charged negligence anticipated its occur if the one with avoided they rence, whether, taking existed, the circumstances then but failing anticipate provide occur negligent duty imposed require every possible pre rence. does not the use of injury individuals, particular means any caution avoid nor accident, may would have avoided it. The appear, which it after the precautions prevent ac requirement reasonable is to use only adopted by prudent persons prior would have been cidents as doings propriety of prudence . . The men’s are accident .
judged event, they circumstances under which act. good they prudence and are they
If act with reasonable from causes which responsible the event could be because to made disappointed reasonably anticipated had ex nor their foreseen ” pectations.’ (Enlarged Torts quotes from Webb’s Pollock on The court also similarly 45, 46, in stated and Ed.), pages which the rule Am (not spe case within certain particular is said that if wherein it *8 as stringent rules) complained is such harm cial and more place should have foreseen man the defendant’s a reasonable liability. likely wrong no also Cluett hap'pen, is no [See cited; 72, 205 (Mo. App.), S. W. and cases L. P. Co. v. Union Elec. & Ely-Walker cases; Dry Goods 865, 220 W. Ward v. (Mo.), S. Ibid al., v. 348, 366, 478; 154 S. W. Zasemowich 248 Mo. Bldg. Co. et 799, Mfg. Co., 213 S. W. American 803.] chair was moved plaintiff’s that if the is obvious pushed is that it was slightly. It not claimed very moved
at all it was around, before she turning over it against her so many steps know how said she have seen it. While she could through walk taken, started to any, at least she had she had and moved The chair had rollers passageway she stumbled. when in her She was aside if freely easily could have moved and she desks, arrangement of chair and mail thoroughly familiar with the frequently day passageway and had basket, times used the several desk. If Gander moved the pulled out from the chair seen the must, testimony, according plaintiff’s have done chair at all he circumstances, In these papers thereon. reaching desk for across his Gander had moved assuming reaching prudent man he should reasonably slightly, can be said that as might in her own be so absorbed anticipated that as she fail to notice as to thoughts or so unobservant negligent or conduct, as whether not. His out? We think started ordinarily prudent men in judged the standard not, be must in their many men, working offices business How circumstances. like they position in which thought of the desks, take and about their possible consequences tc em- respect office chairs with leave their ployees may working office, or others though who be even proximity imagined ? might plac- close in which Circumstances ing negli- pathway chair in person of a would be actionable gence case, in our opinion present this circumstances. does judgment Plaintiff’s accident in our unfortunate but not, negligence through may sympathy, due to not, of defendant and we defendant unnecessary hold liable. -This conclusion dis- renders it grounds cuss alleged. other The error the trial court is Henwood, GC., reversed. Davis and concur.
, foregoing opinion C., adopted PER- CURIAM: The Cooley, opinion Blair, J., court. White, concur; P. J., and J., Walker, concurs in result. (2d) W. 923. S. Appellant. Hicks, Fred State v. 20, Two, 1930. December
Division