Boettger v. Scherpe & Koken Architectural Iron Co.

136 Mo. 531 | Mo. | 1896

Brace, P. J.

This is an action for damages by a widow for the death of her husband who lost his life while in the employment of the defendant, in which she recovered judgment below for $4,500, and the defendant appeals.

The errors complained of are: The refusal of the court to instruct the. jury to return a verdict for defendant; admitting in evidence the mortality table contained in Revised Statutes, 1879; the refusal of the court to permit defendant’s superintendent to give his opinion as to whether the deceased was competent to select the lumber for the scaffold in question; and the refusal of the court to define the term “common laborer.”

1. This is the second appeal in this case. The decision on the former appeal is reported in 124 Mo. 87. The case was retried on the same pleadings as. before, consequently the issues were precisely the same as before. The instructions for the plaintiff, after eliminating therefrom the error for which the judgment was reversed on the former trial, were the same as given before, and defendants theory of the ease was presented in very favorable terms'in other instructions asked by it. On pages 96-101 of the opinion on the former appeal will be found a full and fair statement of the salient facts of the case as they appeared from the evidence on the former trial. On the retrial, in addition to the witnesses who testified, before, one other was introduced by the plaintiff and four by the defendant. We have been furnished with printed copies of the evidence, in full, as detailed by all the witnesses, and after giving it a very careful reading and comparing it with the evidence on the former trial, we find the additional testimony simply cumulative in character, not changing, in any material aspect, the complexion which the case bore when it was here before. The first point made in the brief of counsel for appellant on the former trial was, “that there is no evidence to support the verdict.” The point was maturely considered then and ruled against the appellant. It has been so considered again in the light of all the evidence as 'it appears in the present record, and we reach the same conclusion. The court committed no error in refusing to instruct the jury to return a verdict for the defendant.

2. The court committed no error in admitting the “American Experience Table” in evidence to show the expectancy of deceased’s life. This is a standard table which has been long recognized in this and other states, both by statute and by the courts. R. S. 1879, see. 5968; R. S. 1889, sec. 5841; Abb., Trial Ev., p. 724, n. 4. It detracts nothing from the value of this evidence that other tables are also so recognized.

3. The court committed no error in refusing to permit defendant’s superintendent to give his opinion as to whether deceased was competent to select the lumber for the scaffold in question. That was the very issue the jury were called upon to try upon the facts in evidence, in the case. He was permitted to testify to all the facts within his knowledge, touching the question of deceased’s experience in respect to the subject of inquiry, but it would have been improper to have permitted him to go further and give his own opinion upon those facts. This was the province of the jury. These facts did not call for the opinion of an expert but for a verdict. Gutridge v. Railroad, 94 Mo. 468.

4. Nor did the court commit error in refusing to define the term “common laborer,” the meaning of which was just as obvious to the jury as to the court. The judgment is affirmed.

All concur.