*1 John F. Cole v. Uhlmann Grain Company, Appellant. S. W. (2d) 311. One, January
Division 1937. *2 Sawyer Mersereau, & Lathrop, Crane, Reynolds, Winston H. Blackwell, Jr., appellant. Horace Woodson and F. *3 Lamgsdaile Boy W. Bucher respondent.
Clif
.281 *5 282 injuries. damages personal for
HYDE, is an action for C. This judgment $35,000. From the entered for Plaintiff a verdict obtained appealed. thereon defendant has in North Kansas working grain elevator
While near defendant’s by frame, blown out a by a window City, plaintiff struck steel general alleged negligence, but petition His therein. grain allowing an negligence in plaintiff’s specific show evidence tended in eleva- dust to remain the dangerous accumulation of unusual and condition, elevator, in of the one section tor, permitting and in a against casing the metal in which whereby a continued bucket strike grain ignite dust and sparks which make moved so as to theory. on that explode. The case was submitted cause building one of the elevator part of The occurred description the 4. of elevator No. Defendant’s leg known (conceded correct), as follows: methods used is the leg part grain. of the elevator elevates An elevator is the legs building 4, No. 5 and this elevator There were three —No. by grain exactly capacity. The is elevated except alike as to No. by bolts. This buckets, belt flat headed metal attached to an endless pulleys, in the basement and the on two one located belt revolves building. top power The pulley, located in of the power other'the the (one leg) which pulley motor operated separate is motor each leg. together pulleys, belt, with top is the of the This the located at fully except through it runs casing in a metal where the. enclosed floor, parts The vertical bin where it is enclosed concrete. two separate shafts, the in which belt are enclosed in shaft the this up being upside leg move of the shaft buckets called the being in which down called downside the buckets move leg leg. basement, passed belt part The this where leg pulley, bottom is called the boot.i The feet around the thereby making long. little high, this over twice that Cars belt coming dump were unloaded into a car into the elevator of grain being elevators, all through screen, as used the meshes about such long. passing iy2 five or six .inches After inches and about wide passed through through screen, grain onto chute wide un- grain conveyor belts, which carried the over enclosed to.each legs belt into a into where it was thrown off chute leading three top chute, leg. being bottom of the The about chute leg deep, about feet above the Wheat two feet entered six bottom. leg 10,000 through this chute at the rate about flows into this leg There were about 820 buckets on the belt an hour. bushels pulleys on the at the rate of four. belt revolved per flowing struck this current of minute. The buckets wheat feet through leg passed on down into then bottom of the becoming there, completely leg, through the wheat filled moved grain top, where up upside was thrown *6 discharged garner. grain the was of buckets over into The out the leg- on top the down- by into at the of the gamer these buckets the through a into garner passed chute side. the wheat From the through passed hopper, weighed, the where it was then scale through distributing floor, passed other chute to the where down the bins. chutes into different separate with two modern dust re- equipped
The elevator was one, Sweep System, combat dust out- systems, moval called the Patent, Zink other, the Bud legs, side of and the called the elevator System Sweep of a number The consisted combat the dust inside. -on the with or therein various pipes openings of suction mouths floors, operated electric fan located by was its own individual building floor. In order distributing of on the upper part in the distributing floor System operate, this on the Sweep fan this floor and be had settle on on and the dust to be turned which mouths, from the dust swept openings over to one building. top In other up cyclone on of the to a would be sucked air. No such words, system did the dust out of this not suck System Sweep by used system was suction manufactured separate other up-to-date system. The was a modern and defendant Zink combated the system Patent, Bud dust removal —the consisting system separate legs, in elevator suction dust leg, top operating elevator separate of a suction fan at the each separate operating leg. by motor each on the same shaft and the same the air. It would system This all of the dust out of draw keep quantity out of the air in explosive not at all of dust times known leg leg operating; and there an elevator when the system keep which would it out. as the floor
The above the basement was referred to work floor ceiling room of the The of this was the bottom bins workhouse. eighty ceiling and there was “about feet bins between the bins). distributing (the work above the floor and the floor” floor The part diagram arrangement of this of the elevator is shown following page. July eight-twenty The about occurred 1931. A. m. Practically damage all was in No. 4 Plain- elevator. employed Engineering tiff was Burrell & Construction Com- pany engaged building making which was constructing new buildings Plaintiff, working alterations old for defendant.
yard, nothing did not know him. what hit He knew condi- tions in elevator. Plaintiff did contend that there was equip proper, failure elevator with dust sweeping efficient collecting machinery. machinery His counsel admitted this modern, properly installed. claim was that defendant negligent properly operate maintain failing machinery. Johann, employed
Plaintiff’s witness Company, also Burrell *7 said that he worked days basement the elevator about four explosion;, mighty first;, “there was little before dust” at began get ‘“it dusty”; kept getting that “it worse and worse;” “finally get that he pair had to goggles . . . but there was so much goggles there any good;” dust didn’t do that this dust “was air and the floor also . . . all over the place . . . looked like it was from three to. four inches thick” on floor; wipe would “have to find dust off to the bolts the wrenches . especially . . . small ones . could ’’ not find them on dust; account of the visibility, the base- very poor ment became dust; account of and that he never anyone saw sweeping up cleaning up day. dust first after the Johann also testified (down) that he heard a noise in the inclined heard, part day No. on the explosion. before the He “I said: knocking some kind between the floor and the basement.. something sounded like loose inside . like metal ’’ hitting metal. said that He he heard the same noise when he went to. *8 morning
work .on explosion. of the Johann testified further, as follows: a few quitting “Just minutes four-thirfy,. time, before we through crawled a right hole. There was a hole there above our work. got up
We kind of and of cleaned ourselves and dust.off noticed, I leg. noticed a noise in that That is the time I first that noise, . knocking. that . .1 on opening observed an No. 4.
(Two explosion.) days or three before the ... It was a square opening. Every . . . once in a while of there would be a cloud- dust come out that hole.” Cantwell, employed by witness,
Another Company,.' also the Burrell collecting machinery working said the dust was on that the morn- follqws: ing explosion, dust, as and testified to the as just laying there, everything. “It was thick there over You in. markings anything -parts even see the numbers or on the couldn’t you pick up you would have If of material use. would leave anything on it would . ground up a wrench soon cover . . covered; tell it was
The wheat was couldn’t whether wheat or dust you pick up and feel it and-shake it it around. . . unless ... I spout out the east side and think an opening There was either spout . . . fog- out the west side. There was or a lots dust coming throught up, pretty there. ... It was ging dusty out They having . explosion. . . had been day before trouble collecting system, of getting hot, that run that dust it with the motor They only run it down. it at in- I think had been shut little and ” tervals. that he was called to witness, Nipp,
Another testified the elevator explosion to do some work on a fan morning of the on the coni system; that this collection fan not run- part of the dust trolled bearings and “the at it found morning; that he looked ning that burned out.” He dirty; also said: “It very dirty, very dust walls, on.the pipes; dust on the practically dust all over the base- dust, ment. . . . explosion There was in the air.” The occurred going building while he was to the new for his tools. wit- Another Myers, ness, employed by also Company, the Burrell said morning he heard a noise in No. 4 and that “it something hitting grain sounded like in that belt that up. carries . . clicking It was a hitting kind of noise like metal metal as going Company employee, Marrs, it around.” Another Burrell during days said that the two before the “the basement and very badly walls covered air with dust and the was full dust;” “you lights had an enormous amount of dust and the something dust;” the time looked like meshes and at little dusty that he had never seen elevator that was as as one. man, Company Bodes, Another Burrell said that “there was a con- Leg 4No. tinual noise in were loose buckets on the thougl\ there striking pulley.” came they were around the boot belt distributing “everything floor He also said that on the covered machinery old when sweep with dust. We had to the dust off ’’ day. we went out air several times He down, we took ‘‘ explosions. They right rapid, one he heard three were real said explosions. just enough apart tell three another, far there was after rumble; rumbling of a was that more sound as . The first one I reverberation; up then the second one as looked though house, house, where the second one head to the head old see instantly glass was, began the third one followed was or what sweeper fly.” “I called attention said: He also running. a fan takes the been This was dust hadn’t fan conveyor belt and dis- system off the end sweeper *9 building. cyclone . . . The outside of the charged in a it out inspection of that fan . me to make . . ordered superintendent changes contemplating made in that they was that conditions under cyclone of and the the condition They know wanted to fan. . for it. . . The repairs could be ordered fan so as and the house showing heat; showing bearing black, both shaft armature condition; bearings were old and the through a heated had went it So ... they were worn. bearings and type Babbitt was a hole in the . . There any more. . oil not sustain would sixty per say it wasn’t I over vacuum. casing. It broke the efficient.” cent causes, as follows: “The testified, explosion as to further Bodes spark; while than a a of dust of more It takes there. matter dust good of dust and amount is a less be, if there but spark has to á . . . explosion like one. severe you have a won’t housekeeping, air and inore or less hang wheat dust particles of Beal fine ¿louds when it through wheat elevator a you walk or stratas running you layers can notice is different of it and when it becomes .dense, spark just so one small will set the entire dust like powder off explodes, explode and when it very it doesn’t strongly, but with a puff which particles from shakes the wall of dust that are clinging there and forms a from thicker cloud which we have our heaviest ex- plosion.” witness, "Weidenmann, Another who the contract the dust system
collecting building in the new constructed Com- Burrell pany, inspected sweeps said he the floor in valves the basement explosion where the “and occurred found several lines in the base- entirely ment . stopped up Pipes entirely with dust. . . were ’’ clogged with dust at that time. superintendent’s testimony trials, Defendant’s at other offered plaintiff, part inwas as follows:
“Q. If quantity dust accumulated in the basement in sufficient ? burn, your judgment, A. It largely in did it from where come came openings leg company from the in that the construction was work- ing Q. you explode? on. . . . know grain Did dust would Q. you Yes,.sir. A. . . or it was . Did not know whether of highly explosive explosive or low A. From nature nature? high explosive. results I seen have of different it is . . . elevators Q. you say got ago Did about if something awhile a bucket loose it Q. might you sparks? is what I cause A. That said. Did explosions sparks or A. know would cause dust? That know; ignition is explosions we do not it assumed commence from Q. you spark or a flash a flame Then wouldn’t of fire. you, operate unsafe to if I whether safe or know, understand operated if machinery leg in it was rather a there any con- large A. never deferred We have accumulation of dust? dust, we went operation the elevator account struction right with our work.” ahead testimony, as expert follows:
Plaintiff had grain explosion “Q. assuming is an dust Now, is kept clean so that there leg, has been metal but that the elevator the ceilings floor or large on the walls or of dust accumulation elevator, explosion is comprising the rooms Q. likely as much. No, not to do damage? A. likely much do big that does ordinarily in an elevator explosion What is the caused the ac- which is ? or third damage A. second (cid:127) elevator, suspension around the which is dust cumulation of ? grain A. In explosions order dust Q. that causes Now, what suspended have dust you must grain dust to have same time you have must either proper mixture and in air in *10 . . . intensity ignite that dust. to spark a or a flame of sufficient casing leg leg to the enough the strike in a hanging If bucket is loose minute, feet traveling up hundred any at several point is at where it and way they that is the travel, easily it spark eonld be the cause of a in .leg the ignite that could . customary practice dust. . . It is keep to leg casings boot and tight.” dust following testimony danger as to from buckets came from loose one experts: defendant’s “Q. Mr. Basler, what your opinion, regard is in danger to the hitting óf a bucket leg? Well, daily side of elevator A. it is a explosions pércentage proportion-to occurrence'and in the num- very Q. bers knocks is you small. . . . I believe testified that your opinion in knocking of legs, leg buckets in elevator such as this dangerous? Wabash, not A. I say it would a de- although sirable I happens daily condition it wouldn’t and course want continué that usually given without attention. It is attention. Q. against So that a dragging loose bucket the sides of the (cid:127)casing spark, might would create friction and a it? A. It wouldn’t might might days leg and not. It run for on that until it wore a ’’ doing any damage. .off, rivet without tending Defendant had evidence to show sweeping that dust collecting machinery properly day operating the ex- plosion prior thereto; that the elevator was as clean anas elevator be; possible operate that it was not an elevator keep could so as to absolutely dust; machinery free from that no will take dust out of leg air; opening men; No. made that Burrell only explosion in that there was one case. Defendant’s evi- (as plaintiff’s) that did above the dence showed basement; damage (the was considerable on the-work floor that there concerning damage floors) ; upper conflict was “the most casing” and Avasbelow the damage was done bins and above the. ceiling; “fhe main force of that the'basement Avorkhouse;” leg4 ceiling between the floor that No. casing blown of the down “was out that there the from Defendant’s evidence further ceiling floor.” showed down to the foreign substances, way known metal” keep “tramp thére was ‘ Avheat; ‘shotgun shells, coming' into an elevator rifle chisels, hammers, concrete, glass, tooth, shells, harrow steel material, iron, grain; nails” foreign were found kinds of all through grate screen, openings dumped with Avas the grain grate that the (plaintiff admitted used was “tramp metal” catch constructed); openings than smáller screen used properly those “tramp practical; that such metal” clogged and were get explosion;” spark and cause an bucket, “cause might, if struck up dropped of a might be carried out “tramp metál” that such top prevent it from fall- was a screen at bucket; but that garner. dumped into the leg when bucket the down into ing the buckets on the which held heads of bolts that the' was also shoAvn they went sparks over make so'as to "might become bent belt
289 pulleys, and lighting a match could cause an A explosion. further statement with reference to testimony defendant’s herein- appears after in connection with the contentions concerning- made examination expert of its witnesses. Defendant’s first contention is that the court in refusing erred its requested peremptory instruction. says Defendant that there are' questions two demurrer, on as follows: “First, negligent was defendant in causing allowing this ex- plosive mixture leg of dust and air in and, four? second, was defend- guilty any negligence ant spark which caused the or flame which ignited explosive this mixture of air and dust?” . 1‘ argues Defendant that even with most modem machinery, likely in an leg air elevator is to time be laden with an ex plosive of dust;” “therefore, mixture and that the essential only to question respect with negligence determine to both and causation leg spark is whether or not a in this bucket caused a which caused the explosion.” contends plaintiff’s Defendant evidence not suf jury to make a case on that ficient issue. Because of view we will contentions, take as this and other we consider this matter specific negligence only upon the case submitted. argument plaintiff’s overlooks
Defendant’s that an evidence un- and negligent usual accumulation of dust caused a series of ex- enough injure plosions, plaintiff working which were severe out- grain explosion. was a dust Therefore, side the elevator. There there explosive of dust in and leg 4, was an accumulation around No. ignited spark which it. However, created might only injured plaintiff. itself not have within real evidence was
questions
plaintiff’s
are whether
“sufficient
warrant
(all
finding
an unusual accumulation
over
build-
that there was
explosions,
which
the severe
did
ing)
to cause
sufficient
ignite
spark to
both
him;
this and the
it were
due
injure
and whether
considering
matter,
recognize
we
In
negligence?
to defendant’s
shows
occurrence which
evidence
that, where the
the rule
may
causes,
two or more
injury
have resulted
plaintiff’s
caused
plaintiff must
liable,
have substantial evi-
hold defendant
in order
cause for
defendant
show that
tending to
dence
v. St.
[Fryer
F.
thereof.
L.-S.
actual cause
Railroad
was the
liable
Q.
47;
C.,
v.
B. &
(2d)W.
Strother
740, 63
Railroad
Mo.
S.
Co., 333
1102;
Co.,
St. Louis
v.
Transit
206
188 S. W.
Beebe
Mo.
(Mo.),
Co.
167
Louis,
620,
Mo.
holdWe kept show. The fact all dust not be evidence so that could tial reasonably allowing, dust, that for could be no excuse out was much plaintiff When showed that defendant was removed, to accumulate. reasonably omissions, might which be found have guilty or of acts - grain danger in such accumulation dust been the cause quantities, plaintiff then if further showed other explosive ous and that reasonably inferred there also might it be facts from which (a existing sparks would create steel condition which an unusual force), great casing with of which striking the steel frequently bucket could have of reasonable care by knew or the exercise .-defendant was a question case made can be known, there there explosion. “Simh inference jury negligent for the find a cause necessary circum a from the facts conclusion does not follow proof, but which was substantial there hypothesized, and stances ‘ may one, legitimately therefore be fair and reasonable it is a jury supra.] case, The could by the trier of fact.” drawn [James inference, they it to if believed not to make have decided thing, spark; metal,” “tramp other caused some reasonable certainly jury’s was within the It also explosion. off the that set things together put the two inference and province make other explosive dangerous accumulation was finding an —the unusual existed, that a condition negligence, by defendant’s caused known, which have due care could knew or which defendant frequent sparks explosive accumulation and sparks. Such make continued, inevitably if would, explosion, almost mean an There- fore, jury negligence if the found that defendant’s caused such ac- a explosions, only cumulation as could make severe it was necessary sparks find further were created condition reasonably sparks. could have known would create defendant description The leg. the noise Surely might “tramp metal” would believe not have amade continuous They properly noise like loose bucket. could consider the fact that casing leg blew out place above the where from a direct downward turned course to an incline. If it was inference the facts reasonable evidence that a loose bucket striking (and casing was), we hold that it that shows sparks. which would experts condition create said such hardly sparks, would make sufficient requires condition ex- striking prove pert testimony force, that steel steel with neces- sarily speed case, in this shown belt would create some correctly We that the sparks. hold demurrer ruled. assigns relating also errors to the
Defendant examination of *13 the admission and exclusion of evidence. witnesses and Defendant unduly plain its that court limited cross-examination of contends that Johann. He testified he worked in tiff’s witness the basement days' explosion; sweeping that men four before the were dust the anyone sweepirig day that did see first but not 'dust after first he day. in deposition, read Johann’s which he -had Defendant working days was that the four he he seen elevator during stated shoveling wheat and there and “some others employees that were things pay any I doing of course that didn’t sweeping around reading answer, counsel, after asked attention to.” Defendant’s following question : Johann working your deposition that others were “Q. you say in Now, say days you during and now sweeping four those there you explosion did not see—for four days before the or three two anyone sweeping you there. did see days before objected argumentative (This to as was is correct? answer Which answers.) Sus- in the any difference The is assuming there Court: by (Exceptions saved defend- both answers.” has The tained. ant.) be matter. It will question about the other no asked Defendant definitely say what deposition did in the answer noted days saw them sweeping, what he men he saw said days the witness doing other he saw them days he said what wheat, shoveling sustaining the in error prejudicial was no that there We hold things. question. to this objection his answer in his about Johann asked also counsel Defendant’s “I said: heard he heard, in which he noise as to deposition 292-
rumbling noise; a leg.”, in noise The question, objection, knocking was, and ruling as follows: “Q. (By Mr. Woodson) You you said yesterday here were >vhen asked about that noise that it sounded against like metal hitting metal. Langsdale: Which is correct? Mr. I object that, your if Honor argumentative. please, as It is for jury; and for the further discrepancy there given reason in the in answer the Stevens trial and his : Objection answers here. The Court Objec- sustained. ’ tion sustained for the reason witness say ‘rumbling didn’t question.” (Exception defendant.) saved wrong
The court in this statement say because the witness did deposition rumbling in his noise,” that he heard “a although the “rumbling term was also used noise” therein defendant’s counsel questions. witness, in one of his however, The in his answers in the question read defendant’s counsel deposition, before asked the he objection the trial to which sustained, described the noise at “ ’’ ” rumbling noise, knocking noise, “a and a noise “sounded something leg,” hitting of the like it down the bottom morning explosion. “kept pounding” also.said that description merely limited his witness had not Since the therefore against him fairly charged rumbling hardly it could like sounded conflict the.trial a direct in this statement deposi- in his the statements made hitting against metal” and “metal them, and hold before we jury had these statements The all of tion. sustaining circumstances, the action these court’s that, under ground, prej- not have been objection, on an incorrect could even udicially erroneous. the court should
Defendant further contends have dis requested, improper prej charged jury, as it because of an question by plaintiff’s in a asked de made counsel udicial statement - during superin superintendent cross-examination. ?s fendant testimony show that there was no tendent’s tended *14 working Stevens, was employee, Charles S. room where an the scale objections, rulings court, this questions, were The time. at the follows: as you County, in Platte that sued over one “Q. he And Company? A. Yes, sir. Uhlmann Grain Stevens versus S. Charles Q. sir; Yes, place at the Yes, A. sir. injured up there? Q. was He I damage? A. don’t be- no say there was you where Q. He any place in the elevator. was no T said lieve ? dollar verdict got a six-thousand the extent he injured was your please. if Honor object I to that minute. Just a Mr. Woodson: making reprimanded counsel And I ask R'ighter: Mr. jury. is the presence like remark improper room. in the court heard thing I ever inexcusable most jury account of the discharge ‘to moved also Woodson (Mr.
293 prejudicial question.’) The Court: There have been a speeches lot of made in this case on both sides that ought not to have been made. Now, gentlemen of jury, objection question to the is sustained. The motion to discharge jury is overruled. The court will once again you gentlemen. admonish This court is not the habit of re- primanding counsel on either side. The again court will admonish you that you when come to upon your deliberate you verdict will wholly ignore any comments or statements made counsel on either side and your confine solely attention to the you evidence as hear it from the witness stand and to the instructions of the court as to the (Defendant law.” saved exception.) this question This improper. was Had the court it, by sanctioned 'over
ruling
objection
allowing
it to be answered, that would have
been reversible error.
v. Pulitzer
Co.,
Pub.
336
[Warren
Mo.
78
184,
(2d)
S.
404,
W.
419;
l. c.
see, also, Bishop v. Brittain Inv. Co., 229
Mo.
129
699,
S.
668;W.
v.
Evans
Town
Trenton,
Mo.
614;
S. W.
Chowning v.
Parker,
App.
Mo.
674,
We find to indicate that properly discretion was not prejudicial exercised or that it was error for the to fail do court more than it did.
Defendant further contends that the court should have dis charged jury, it requested, plaintiff’s per because counsel was Indemnity Company mitted to show Globe interested ques the defense of the ease an insurer. counsel was Defendant’s tioned, (out jury’s voir dire presence), before the stated Although company paying attorneys. the defense appear’, may plaintiff’s does we assume that counsel used this (in proper way complaint) information because defendant'makes jurors. trial, plaintiff’s Later in the examination counsel (who doctors testified to on cross-examination one of defendant’s faker) brought malignerer out that plaintiff was a the effect that companies. The doctor made examinations for insurance the doctor others, among named companies and, several name asked to these objection made to this No Indemnity Company. Globe answer to which he said questions in defendant, nor further Indemnity Company, he Globe for the made when he examinations reports in such his Barry; that he made Mr. Frank that for did made to con Barry. No reference Mr. Frank instances with Company this ease. Indemnity Globé nection of the examina- this doctor’s as to ássign any error Defendant does colloquy, following upon of error its claim tion, bases but by plaintiff witness *15 as a later called Barry was when Mr. occurred rebuttal, namely:
294 Langsdale: “Mr. Barry Mr. subpoenaed has been I informed and these, gentlemen I him wanted to be sure and morning. be here this Mr. Woodson: Don’t look at me. I Barry. have no control over Mr. you If get want him down here, Langsdale: him down Mr. here. representing You are Righter: Barry Mr. in this matter. Mr. I ob- ject that, Honor, Your and ask that jury it be stricken out and the disregard instructed to provocation it. There is no or excuse for a statement like that. Well, jury The Court: I have the admonished Langsdale: so often. by defendant.) (Exception saved Mr. says Barry. He he has course, control of Mr. I Of have the right reply that he is representing you him. The : want Court Do an him? discharge jury attachment for Mr. Woodson: I move to the on account of (Ex- the The Court: prejudicial remark. Overruled.” ception by defendant.) saved Barry,
Plaintiff’s purpose calling Mr. whose explanation appeared attorney name on pleadings the for defendant ease, actually trying who said were as- attorneys, defendant’s the with him in defense, sociated follows: its was as interrogated When the plaintiff was the he had been first stand previous injuries, forgotten injury for about and had to mention an Langsdale. present attorney, which suit his Clif had been filed petition, 1916, injury. In that in he had claimed a head The case had for- plaintiff had $150, settled for both the and his counsel been gotten plaintiff’s counsel ease, At defendant’s about it. the close of appear .release, which produced petition old made deliberately Langsdale, had counsel, plaintiff plaintiff’s .Mr. counsel, jury. Plaintiff’s 1916 from the attempted to suit conceal signed answer that he had put to show Barry Mr. on. stand suit, in be- 1916, signed the answer also suit in no intention jury, that there was lieving convince .first, having cases. Barry been both suit, Mr. conceal the fact of Barry calling Mr. a witness purpose says Defendant jury the defense of indelibly in the minds “was to establish the. .However, Globe Company.” Indemnity Globe the case Barry Mr. as a in calling Indemnity Company was not mentioned settle suit and examination, former his about the during nor witness persistent be a can be construed think that this We ment. do ‘‘ company will that an insurance get the understand effort to assessed’.’, de this court damages such'as ultimately pay the .to have 885; (2d) 88 S. W. Mo. Carver, 337 v. nounced Whitman (2d) 538; Olian v. W. 22, O’Brine, 335 Mo. S. Rytersky v. (2d) defendant. 673, cited The. 689, S. Olian, Mo. W. in those cases ones considered was so different here situation defend overrule the court to for hold that it was error that we ground discharge jury, asked request ant’s the trial counsel that defendant’s prejudicial to state that it was *16 ground it Barry, Mr. rather that was representing were than attempt inject to an insurance into the case. complains improperly further
Defendant the court limited experts Ahlskog, Peterson, Basler, the direct examination of its Wil son, Manning. Ahlskog’s testimony, illustrative of de is theory experts, part, as all of in is follows: fendant’s stated its as explosion of “To a dust we have to have a certain amount dust get suspended dry in of the air. dust must be certain fineness The sufficiently explosive in form an combination. quantity Dust to grain explode will Some dust will not not under all conditions. ex- any conditions; grain if it plode explode and no dust will is under make, piled heap suspended in air to in on the must be floor. some, spark ignite of explode. it need a to the dust and Tou flame-or -, . explode. general principle. . set rest afire and That is the today completely no equipment There is in that would so remove use danger explosion. . fully the' of an' the dust as to eliminate grain average cent of per Commercial will contain about two grain bringing with are in . That means we fifteen thousand dust. .
pounds every . someone should Assuming of dust hour. . de- ninety-eight efficiency, collecting eqiiipment with velop dust pounds per of that dust cent three hundred would still allow two twenty suspended of-dust escape; pounds hundred bushels three properly if of dust air, happened proper it to be kind . . . up to blow elevator. These mixed, would be sufficient finally up traveling ground particles, around, are until are flour, -being lighter they will flour, and, than re- as fine as finest length . of . . suspension for a time. Eleva- main in considerable time will at all times contain operation has some tor that been explosion. . . supply good Sparks are enough dust sized to- leg prevent is means to liable to created inside (cid:127) leg every with Foreign : almost that. substances enter If grain happen ... a bucket should that is received. carload objects,' spark is certain result. one Of these almost- strike usually Experiments an initial ex- shown we have have explosion sparks spread and it plosion. flames and out From' this explosions. Each successive ex- a series of additional is followed course, expand air builds plosion, up causes im pressure.” creased Ahlskog: following questions then Mr. were asked “Q. your humanly possible opinion, In have been would.it -leg anyone inspected elevator; after to have elevator any certainty with the cause and to have determined explosion? A. No. The exact cause could be determined of that long completed. has removed before because been you Q. why your Please tell us couldn’t you explain Will answer? ” caused determine what it. Objection question was made to this facts shown last unless further by plaintiff’s evidence, leg and the condition to the noise in the belt, were would not considered with it. Defendant’s counsel why include explain them and the further witness was allowed thought he the ex- possible was not cause after determine the plosion. was, He however, permitted testify, follows: to further piece “If a foreign material was struck at the bottom grain immediately while rushing in, spark probably would be *17 extinguished by enough onrushing grain. the air at that There isn’t point any way only explosion. place to an where it could cause The danger be of foreign would if a above the be bucket strikes material grain grain leg.” level. point That would at the where enters the complaint
The limiting as to the examination of witnesses Peterson permitted and Wilson to answer similar were were not questions “humanly anyone as possible to whether it was for to de- true, usually explosion. termine as the cause” the It is court testify knows,” rulings, only stated in its can what he “witness about,” himself,” what he “knows or “what at least he determined proper scientifically possible. unless there is a to issue as what is plaintiff disputed require facts, not to While could defendant include possible “humanly nevertheless, anyone” whether it was for to de- happened, any termine the explosion, cause of had elevator after it certainly question required limitation, was too broad a to some bar, confine it to throw the facts of the case at before the answer could light jury; here, on the immaterial issues before the and it was attempting upon plaintiff because a case an ex- not to make explosion. amination of the after Plaintiff did not denv elevator “tramp the claim or that metal” cause an could away admission be blown if it cause it. Plaintiff made an did things, said, might in the record that “all the other witnesses these contention, negligence 'cause it.” Plaintiff’s that defendant’s caused existing explosion, upon before was based evidence of conditions (Dust collecting machinery explosion. operating and buckets attempted striking casing). only things party The that either severity, by inspections extent, experts to show and effect objection explosion. of the If it not error to sustain an to the permit question, explanation it was not error to refuse to an of an Ahlskog already answer it. It will also be noted stated determined, saying his reason for that the cause not be could explosions. “tramp explained metal” afterwards further lengthen opinion will out all We not further set Manning Basler, questions as to which defendant asked witnesses objections, assigns ques- sustained these error because the court since criticism, subject went to tions either to this same matters not were subject testimony, properly expert referred to matters during witnesses at some time them or other were testified only trial so their answers would have to be cumulative as- opinions facts or repetition in evidence. There considerable putting expert testimony course defendant’s and' dispute parties between many as to of their statements and opinions. We hold that the court did abuse its discretion in- limiting assigned is, them the instances as of course, error. contends, objection expert defendant not a proper valid testi- mony question that the province invades the of the calls for conclusion of witness, long so is not a conclusion law.
[Young Wheelock, v. (2d) 333 Mo. 64 W. 950; S. v. Fields Luck (Mo.), (2d) 44 S. W. province jurors “It is the to draw 18.] all inferences and conclusions from the evidence before them. The witnesses, general rule, as a jurors must state facts from which opinion. are to form stated, their But when the facts are all upon subject intelligent an inquiry, opinion if cannot be drawn there by inexperienced from persons, ordinary jury, such as constitute exception general rule, who, by is to the persons made ex perience, observation, or knowledge, peculiarly qualified are to draw facts, purpose aiding conclusions from are, such jury, permitted exception to give -opinion. their allowed neces expert An sity. discharges witness, ini a manner, functions of *18 furor, and his should never is evidence be admitted unless it clear that jurors are not from want capable, experience, themselves knowledge subject, to draw correct conclusions from facts proved.” Co., 824, v. 331 55 Empire District Electric Mo. S. W. [Cole (2d) experts’ opinion properly is “the received when fact 434.] possessing necessary witness skill draw a certain would justifies inference, facts, probative as possesses from the force such reception one.” its as some evidence that such inference the correct supra; see, v. Railroad [Young Wheelock, also, v. Kimme Terminal 561; (2d) Assn., 596, 334 66 S. Homan v. Pacific Mo. W. Missouri (2d) 617; Wells, v. Co., 61, 334 64 W. Railroad Mo. S. DeDonato (2d) probably not have 328 Mo. 41 S. While W. 184.] per prejudicial against in this have plaintiff case to been error questions expert some of the defendant’s witnesses to answer mitted out, whole record from an examination of the we are satisfied ruled properly to cover all material issues that defendant was allowed prejudicial com testimony, error wás subject expert and that no complaint is made. rulings which mitted, in the the court complaint the attitude of
Defendant makes also brief, cites, in its a number of re prejudicial to defendant during trial, which it now claims the court marks comments of lengthen prejudicial. purpose would serve no useful were It claimed necessarily any of these incidents long opinion to set out complaint motion for in its prejudice. no such made show Defendant rulings specific grounds certain assign therein trial, as new but did the court during witnesses, examination well as more general complaints concerning incompetent admission of evidence and competent exclusion of We evidence. therefore our have confined properly review to such grounds, matters as were within these stated apparent since it is not from the whole defendant did record that not a fair However, say that, have we after trial. will a careful exceptions pages examination of the bill of which covers of the printed abstract lasting week, and shows trial more than! we are impartial attitude; that the convinced court its re- its marks and prejudicial comments were not be to defend- intended to ant; they reasonably cannot be have construed to had that ef- fought tried,; fect. The case was hard but not at well all times dispassionately tried, by parties. for While counsel both the court pressed complete times counsel to of witnesses and examination repetition, nothing obviously improper to avoid we find in its action. submitted, jury ease Before admonished the court spoke sharply trial, all occasions when counsel course they only representing that, other, to each their clients and were spoke sharply counsel, when court the court was interested except impartial in either side that each had a fair and to see side disregarded trial. The court-stated that all such occasions were to upon verdict, apologized their deliberating early any irritation shown. also a similar statement The court made accepted Apparently trial. defendant’s state- counsel these court, time, any prejudicial removing possible ments of the at the incidents, nothing such about it in their since said effect stated, for new For this and reasons above trial. the other motion will considered here. this matter not be further assigns error in the court’s action on in Defendant further G its Instruction should have contends that accident structions. main No. was given plaintiff’s Instruction erroneous. been properly refused it did instruction because accident Defendant’s accident: “In the complete correct definition of an give a requirement is that legal meaning of term accident ‘essential ” *19 human fault does contribute.’ be which one to happening the 1001; Hogan 375, (2d) 72 W. v. 335 Mo. S. Chattin, v. [Wilson (2d) 1103, 322 19 S. W. Co., Mo. City Kansas Public Serv. 707.] ignored G this essential Instruction defendant’s The definition F defendant’s Instruction give court did Moreover, the element. if “were unable to de to for defendant directing them find resorting guess . explosion . without the cause of the termine proof two burden of in as well as conjecture,” work, speculation or telling plaintiff that could not them and instruction structions by explosion spark caused was a unless'they the that found recover negligent or specific act omis some result of “was the which or'flame defendant. of sion
299 plaintiff’s The criticisms made 3 Instruction No. are that' charge negligence not pleaded, it of submits that was no support it. by evidence to latter contention was This ruled our rul ing assignment concerning peremp defendant’s the refusal of its tory negligence unusual, instruction. The submitted was that “an dangerous explosive accumulation of dust” had been “caused by defendant, permitted” leg and that “there was No. against casing striking been bucket the metal around said leg” by ordinary of which “defendant of knew the exercise care (and knew could have known ‘that said so also bucket might generate striking casing, so, said metal if spark cause leg ignite explosión’) which would dust in said cause an .' by ordinary care, of have, stopped within exercise time the ' machinery in Of course, said and remedied the condition.” loquitur ipsa petition on a res be than instruction based could broader pleadings. negligence properly issues here narrowed to were proof specifications because submitted defendant’s tended to negligence explosion definitely specific which, show this if the defendant, any negligence negligence been the due to of must have Co., 133, v. Trenton G. & E. 326 Mo. cause it. did [Conduitt (2d) 21; City Carthage, 844, of 330 Mo. 51 S. 31 S. W. v. Sanders ; Ry., L., Co., 336 Powell St. & P. Mo. (2d)W. 529 v. J. H. (2d) fact is based on the S. W. Defendant’s contention 957.] explosion by de generally that was caused pleading
that after negligence, plaintiff’s petition stated that defend further fendant’s likely plaintiff that “negligently to warn said ant failed ordinary although of the exercise care occur,” would it “knew or likely occur.” Defend known would have that said only specific negligence warn was says ant that this failure was, general charge; and superseded it pleaded; .that sub-, negligence only ground properly that could be therefore, of warn, be circumstances, under some While failure to mitted. the, (eases approach of of vehicles charge' specific negligence bring intended to event that defendant of some occurrence properly it can be construed not think example), do about, for we explain It charge negligence any-way all. did not in here aas charge cover. general stated negligence intended what any negligence of to show defendant nothing that would even tend explosion, and was the re been cause of have which could defendant, plain negligence explosion, caused sult of an plaintiff “only to show go could sought to recover.' It tiff Contracting (Mo. v. McMillan Co. danger.” unaware [Cull App.), Spicuzza (Mo. (2d) S. W. 868; Crupe v. 178 S. W. App.), surplusage as mere properly treated hold that it could We 347.] concerned, negligence find we charge general so far as theory petition parties tried both the case was *20 only proper charged general course,,even if a negligence. Of he had to, right ipsa (which decide), plaintiff res had the case we do not evi- specific negligence could, such and, produced show he if he when dence, tended theory that evidence he had to submit Ms his case A but it ipsa have erroneous prove. res would been instruction jury was give hold that the was not error to instruction. We correctly instructed. Plain excessive. contends that verdict is
Defendant also weighed than more frame, tiff was window struck steel a a top of two- onto pounds, blown out of the elevator forty- working. Plaintiff was story plaintiff building, near which per day injury, earning $6 years at his five old the time of and! weekly average, days per a week. This five and working one-half times, a had, other worked as $33, per year. $1716 of He at as He had also earned much plumber a and as construction foreman. per day Considering evi deep well' $14 a foreman. $12 plaintiff, it was sufficient viewpoint from the dence most favorable injuries. injury A disabling brain permanent to show two serious shown, however, sprain. It was not a from concussion and sacroiliac X-ray bones. The broken a skull fracture that he sustained St. Luke’s first taken nothing Plaintiff was abnormal.” “showed Aftep days. being home a five Hospital where he remained-about (cid:127) him taken to Neal, Dr. who had' was’placed under care of day, he about six weeks. Joseph’s Hospital, where he remained St. long inches scalp five injury a wound Plaintiff’s head about pinpoint small cause of the brain sufficient concussion irritable, headaches, was could hemorrhages. from severe He suffered injury sleep caused weight. Dr. Neal said well and lost hearing. headaches, a disturbance of dullness, frequent mental drawing spinal fluid that he' determined Dr. Neal said greater than pressure intracranial much plaintiff had an canal “it is best was that description of his condition Dr. Neal’s normal. ” He said: deterioration.’ term ‘mental by the described word— things. ability His his to describe of some disturbance “He shows grasp questions. alertness to very faulty; and he has not the memory is grow will worse and, my opinion, improve . . will not . September, since progressive deterioration it has shown because im- got over his he My explanation is that 1931. ap- function its normal shock to his brain resumed mediate per- injuries more became the diffused parently later, then after organic changes brain tissue, manent, scar contraction symptoms. incoherency the other produced return his being memory of consciousness and loss the time This loss of -facts be- I have epilepsy. ... sufficient be an indication might say I epilepsy. diagnosis can fore me to make suspicion epilepsy.”
301 (there from that bleeding Dr. Neal said that ears evidence injury) did in after the was evidence plaintiff have blood his ears might by X-ray. which of skull fracture be disclosed Dr. a basal plaintiff’s that Neal and other doctors said mental condition hysteria, Elliott, plain- similar to Dr. who shell shock. also treated tiff, “I said: came to the conclusion man a con- mental by I injury produced, dition a which caused head believe, diffuse brain; damage to the and he has some manifestations that rather are suggestive may epilepsy.” of epilepsy. It Stowers, Dr. who plaintiff trial, examined said: my before “As a of result own opinion examination I arrived at an man suffering a rather severe concussion of the brain which had become chronic. I diagnosis phychoneurosis.
. . . at a arrived a . . . is a It in present condition which there is disease but a it is state of the brought mind which affects the whole system, usually nervous on disturbance, very frequently injury. some emotional A ... dis- sensation, weakness, irritability, turbance of the increased likewise nervousness, emotional all of which are indicative of such a condi- - quite . tion. . a condition similar to shell shock.” required injury him Plaintiff’s sacroiliac wear supporting a belt walk a and to with cane. Dr. Neal said: has “He the usual evidences of a sprain, lumbo-sacral which are limitation in motion the small back, stiffly moving of the the lumbar vertebrae held as piece; one spasm accompanies it; the muscle muscles, tenderness over the ’’ particularly side, on the left small the back. Dr. Elliott said: ‘‘ limps He a great leg; deal with left has tenderness over left nerve; damaged sciatic and a left ankle jerk, I think in- means jury joint.” to the back and sacroiliac Dr. Mercer said that left plaintiff’s improved by “transplanation bone; condition could be place piece a take of bone out of his his back an effort joints,” loek those if two this was successful “he would fifty (cid:127)certainly per (efficiency) have cent for hard labor.” Dr. Stowers plaintiff’s “A injury said back was: sacroiliac strain on left side and lumbo-sacral strain which involves both sides. . The perfectly present my man is opinion unable at the time and in will gainful carry occupation be able the future to sort, sitting, operation not even he would an unless for stabiliza- have mostly spine, probably tion of his which in turn leave him would with fifty disability. per cent total I permanent classify injuries which, incapacitated, him-in the class of back where are keep work, unable unable comfortable.” testimony
¥e must consider that the believed the most favor plaintiff permanently able found he disabled his injuries. Nevertheless, considering precedents, other well plain age earning capacity tiff’s we must hold that the verdict was earnings plaintiff’s ($33 per The present excessive. value of week at 302 injury) according statutory his to our tables the basis time of $19,610.45. annuity monetary per of six cent would be While the wages upon basis of a continuation then reached
value totally person, injuries, disabled as a result of earned who is arriving damages, guide sole the amount of his cannot be the must be considered unreasonable if it is too nevertheless the verdict Bank & v. [Midway far above that amount. National Trust Co. 406; Wheelock, 139, 233 319 563, 288 Mo. W. Pulliam v. Mo. Davis, S. 652; 374; (Mo.), (2d) (2d) S. v. Wells S. W. Truesdale W. Frese (2d) Considering Wheelock, v. 74 S. W. the fact Mo. 585,] plaintiff capacity higher; wages did show a than he was éarn *22 considering receiving pain suffering injured, also the 'and when injuries might which the resulted from his his mental believe reasonably condition, permitted verdict could be we hold that a annuity greater stand in this for a amount than the value of case wages receiving. greater he conclusion is that a verdict than Our $25,000 warranted evidence. v. C., would not be Brock [See 691; 266 Co., 502, I. & P. 305 Mo. R. Railroad S. W. Unterlachner 181, 755; C., 296 Wells, Kepner v. 317 Mo. S. W. v. & St. C., C. L. (2d) Co., 299, 825; Ramey 322 Mo. 15 S. W. v. Railroad Missouri (2d) 873; Co., Keyes C., 323 21 S. W. 662, Pacific Railroad Mo. v. B. Q. Co., 50; (2d) Savage & 326 Mo. 31 W. 236, C., Railroad S. v. R. I. 44, (2d) 628; & 328 40 W. Railroad, P. Mo. S. v. Brunk Hamilton- (2d) 903; 66 Co., 517, 334 Mo. W. v. Brown Shoe Kelso Ross Const. S. 527; 202, (2d) 85 W. Co., Mo. S. Colwell v. St. L.-S. F. Railroad (2d) 494, 222; Pandjiris Co., 335 Mo. S. W. see also v. Oliver 711, (2d) W. Company, 98 S. Cadillac Mo. 969.] $10,000 remittitur for plaintiff If will enter a as of the date of the judgment affirmed; judgment, days, ten will be otherwise, within Ferguson judgment will be reversed and the cause remanded. Bradley, GC., concur.
PER Hyde, C., foregoing opinion by adopted CURIAM: —The All judges opinion of the concur. as the court. Cunningham
Joseph Buchholz, Appellant, v. James H. et al. Cunningham Joseph al., Plaintiffs, James H. De Buchholz, et v. (2d)
fendant. 100 S. 446. W. One, January Division 1937.