180 Mo. App. 447 | Mo. Ct. App. | 1914
The plaintiff sues for personal injuries resulting in his thumb having to be amputated and alleged to have been received while working for defendant, who, as contractor, was constructing, and excavating for, certain septic tanks connected with the sewage system of Springfield, Missouri. The petition alleges that while working for defendant at the work of excavating for these tanks, he was directed to keep the water out of these pits by pumping same out with a hand pump provided for that purpose. The negligence assigned is: “First. That defendant negligently and carelessly failed to provide plaintiff with a platform upon which to stand while using and adjusting said pump. Second. That defendant negligently and carelessly failed to provide guardrails or other barriers to prevent defendant from falling into said pits while at work, as aforesaid. Third. That defendant negligently and carelessly failed to provide sufficient lights or any lights for plaintiff’s use while working in and about said pumps and pits, as aforesaid.” The answer controverted the fact of plaintiff
This latter allegation of the answer refers to the fact that plaintiff had received injuries about a month previous to the injuries now sued for by having this, same thumb caught and crushed in some cogwheels-while working for defendant at this same general work. It is conceded that this former injury was settled for in full and defendant denied that plaintiff received any distinctly new injury but claimed that 'the amputation of the thumb was caused by the injury received from the cogwheels, such injury, having reached to the bone and being aggravated somewhat by plaintiff working and using his thumb before same had healed. While there is much evidence to this effect, the plaintiff testified positively that his former injury had become nearly well and that on the night of August 8,. 1912, he was again injured by reason of slipping and falling while trying to lift the hand pump and that this-pump then fell on his thumb, crushing it between the pump and a piece of timber or stake driven in -the ground to keep the pump in place. This question was-submitted to the jury under instructions to find for defendant unless the plaintiff received the new injury at the time and in the manner alleged and to allow nothing for the previous injury received from the cogwheels. While defendant urges that a demurrer should have been sustained to the evidence, we must hold that plaintiff’s statement in his own behalf, however, much it was contradicted by other witnesses, furnishes some evidence to make this a question for the jury.
■ Stated most strongly for plaintiff, the evidence' shows that he was working at night with a helper, who became sick about midnight and quit working, leav-. ing plaintiff to continue the work alone; that part of
On this state of facts, the court gave the jury the-following instruction, which is the principal instruc
This instruction is erroneous and makes a reversal of the case necessary for two reasons: First, The instruction assumes that it was negligence for the defendant not to have made a platform, erected a guardrail or furnished lights in doing this work; it assumes that plaintiff was not furnished a safe place to work in the absence of these things being done. A jury reading this instruction must have understood that the law required defendant to do one or more or all of these things and that a failure to do so was negligence; in fact, the jury must have understood that’the only thing they were required to do was to determine
In the next place, the plaintiff does not claim that it would be negligence in defendant to fail to do one of the three things mentioned, to-wit, build a platform,
It is uncertain under the evidence as presented in this record, whether a failure to erect a guardrail had anything to do with the accident. The only purpose of a guardrail would be to prevent plaintiff or other employees from falling into the pits. As we understand it, the plaintiff might have slipped and fallen by reason of the slippery ground around the pump and might have done this regardless of any guardrail, which could only have served the purpose of preventing his going into the pit. Pie might have fallen with the pump on his thumb by reason of the darkness and •slippery ground had the pit been miles away.
As before stated, the plaintiff’s theory of the case evidently is that plaintiff’s place of work was rendered dangerous only because of the absence of all the three things mentioned as tending to make the place reasonably safe. The absence of the platform and guardrail was conceded though their absence was properly proven and is important as showing the necessity of having available lights. The whole question of negligence turns on the absence of available lights: (1) whether lights were necessary to make the place a rea
Error is also assigned on the court’s refusal to sustain an objection and discharge the panel of jurors because of plaintiff’s asking the jurors on their voir dire examination if any of them were in the employ of or stockholders in the Southern Surety Company or the Missouri Fidelity & Casualty Company. It is claimed that the purpose of this was to covertly convey, to the jury the information that an insurance company was back of defendant and would have to pay what ever judgment might be obtained. The answer is that ■one of these companies is a local company and had a large number of stockholders and employees in and about Springfield, where the case was being tried, and that plaintiff had a right to know the relation of the
For the errors heretofore pointed out this case will be reversed and remanded.