*1 ?74 Eyermann Contracting Fishang Company, Appellant. v.
Frank (2d) 30. 63 S. W. Two, September 4, 1933. Division *2 Wayne Ely Ely, appellant. Jr., and Tom *3 respondent. George W. Johnson
Henry Ehenhoh *4 injuries damages personal for COOLEY, is an action C. This he when plaintiff, respondent, damage sustained to his truck quarry. The edge and into defendant’s the of backed his truck over June was tried 14, 1927. cause November The accident occurred n following resulting in the thirty-one thereafter, months verdict: on find favor of jury in above cause
“We, damages at the sum joined and assess herein the'issues ninety-five dollars. eight hundred three thousand 60/100 Foreman. “Carl C. Hudspeth, “As follows:
“Damage truck 208.60 ............................$ “Medical attention ............................ 87.00 “Disability, thirty-one $100.00 months at . 3100.00 month physical injury “For ..........................5000.00
$8395.60” Judgment aggregate was entered on verdict for the sum of $8395.60. If is entitled to recover not defendant does challenge the first two items of the verdict. It contends that he all, largely ground not entitled to recover on the that the evidence conclusively guilty negligence shows that he which caused injury, contributed to his in any and that event the evidence not did recovery $3100 authorize item.
Defendant, corporation, charge had and control of an abandoned quarry in St. Louis into which persons desiring dump allowed so cinders, dirt, a stipulated ashes and rubbish for per sum load. kept Gastreieh, an employee, one sometimes referred to in the evi- caretaker, dumpkeeper, charge dence as quarry. variously cavity was estimated seventy-five at from to one hundred fifty deep. From feet to the bottom descent, thereof the though vertical, precipitous. Plaintiff dumped had ashes quarry several and rubbish at the times a week for some prior time injury to the time of his and was familiar general situation, with the always dumped had though previously he on the north opposite side side at which place on the south he was "directed Gastreieh to He had never dump dumped on this occasion. before on the south always that Gastreieh side. He testified directed him where to question; dump did so on the occasion that on this occasion for me to come Gastreieh “indicated forward and my engine turn turning house,” his thus the rear toward end of the truck toward and then motioned to quarry, back,” to “come within slowly; that when he was did, eight seven or he feet of the nearly quarry, as as he could tell by looking through his gear put neutral, lever mirror, stopped, leaving his engine he get and started his brake running, put on out of the cab intending, custom, as had theretofore truck, to walk back precise ground and ascertain the survey the distance of his truck quarry; thereupon and before get from the could truck Gastreieh “interrupted behind the me with so as to see out getting you it, you out for? God damn remark, got ‘what are *5 ” you me, stop;’ I will when to tell that he thereupon, Watch mind. Gastreieh, upon put and reliance truck in to in obedience reverse Gastreieh, eyes slowly came back on keeping carefully and, creeping “I back at motioned; drove speed, as as Gastreieh slow he thus back go;” that as came Gastreieh would truck said: as. back; “Come on; room;” on plenty come that when he felt rear end of his- truck sink he threw put out his clutch and on his but was unable stop and, brakes with truck, went to the bottom to quarry; just of the that as about he felt the rear wheels of his truck going edge Gastreich, over the voice, “something in an excited said ‘whoa;’ the nature of put that was about I the time the brakes on.” testimony plaintiff’s George of one of witnesses, Kalinow- ski, who accident, observed the tended to corroborate tes- timony directing that was him. Gastreich Kalinowski was not ob- serving and did not see and hear plaintiff what occurred before slowly started back to under Gastreich’s direction but he heard plaintiff “come bid on back” when Gastreich was five edge or six “crawling along, moving feet from the slow,” back say and heard Gastreich “whoa” “practically when ‘‘ ’’ edge quarry just at the of the but it was- too late and down into opening he testimony Kalinowski’s indicates Gas- that went.” treich, if generally, sometimes at least thus per- directed other they edge sons as backed quarry. of the you He said: “When backing gentleman quarry say are (dumpkeeper) will you finally ‘come on back’ until opening are where he wants you.” always dumped to set But he himself without Gastreich’s assistance. witnesses, One of Connors, defendant’s who he saw when seven, eight edge backing feet from the quarry, of the toward
it, but did not immediately preceded, see what or..hear testified that he then say plaintiff, heard Gastreich to “Come on back about four feet,” “I my and then turned head for a I minute and then heard say, say Gastreich ‘whoa.’ Sometimes up when he ends will he ” enough.’ ‘whoa, that will be far On point Gastreich, this defendant, stopped that plaintiff eight testified his truck seven' or ‘‘ ’’ ‘‘ dump, motor, got feet from the killed his out and walked around around,” truck got of his to looked then in the truck him, he sat witness as behind wheel said to “come down ’’ easy feet, him; four which was all about said plain- to starter; stepped thought on his then witness the ear must have tiff. gear stepped “as it took when he hold on the starter. The immediately back jumped car went over the bank.” tended to show that Plaintiff’s evidence there was bumping no . any log quarry kind at the prevent or barrier of backing backing up dump; ground far when too trucks edge- was level. From some and about of defendant’s at .the wit- was.testimony tending to show that it customary there nesses quarries dumping places a.nd similar to maintain a this other log prevent a- barrier of dirt at the bumping, accidents question.; Defendant claimed and introduced evi- such the.one always tending such barrier at .maintained dence. .show *6 n 880 question quarry composed and that there at -the was one of earth (cid:127)' place attempted directed he was and where .where height dump on occasion. at -this Different witnesses estimated its n from one 'Ramstein, one a half and or two feet. Richard
defendant,' grading* -he and testified that had been business Eyermann- had dump dumps; used the as well as other in the that Fall 1927 I- “the that there, times was there were either old tim- (cid:127) piles bers -or quarry dirt around the of the where the truck .of over;” dump piece would that would call bumping he of timber a log; Eyermann had quarry; “they always seen one at had quarry years 'timbers or at 1925 mounds dirt between- the 14,- 1927,” n 1928, prior they to November but he know didn’t whether n n day Gastreieh,- alleged had one there that or not. relative log bumping you barrier testified “a of, is whatever make it —twelve by twelve, I four four. seen lots dumps.” have of them at different said, 14, 1927, right He first “there one there on November ’’ dump Fishang -off dump, upon where backed to the but being confronted with a different he had depo- statement made said'there was not a timber barrier, high; sition- but a dirt two feet ‘‘ ’’ bumping log city there had been there when dump; had the log “the I bumping reason haven’t I crippled, there is because am four, it sinks down in night the hole about feet I every bearing pile can’t it. I handle use the of dirt instead.” The facts upon $3,100 dispute as to item such further facts as it may necessary questions given be to state relative to other will be points they in connection with the to which relate.
' n Taking I. up question -first liability- generally, we do not appellant seriously understand to contend there was not a sub- negligence, particularly missible issue made as to its if Gastreieh was acting scope within the duties employee directing of his as its movements as he backed quarry. toward the (a) asserts, appellant tending 'But there ivas no 'evidence acting show within scope that Gastreieh was employment of his (b) acting doing -if-he in-s'o was so was nevertheless guilty contributory negligence obeying relying upon of' direction. (a) quarry appurtenant premises and its pos were in session and control of the company defendant and it was used as a
dumping place. having Persons dispose refuse to of Were invited purpose, they did, to use it for that paying for the privilege. persons, Such "of whom one, were invitees of defendant upon premises, to whom it duty owéd the of exercising ordinary protect injury. care them from That much is _ conceded. Gás employee, treich' was' defendant’s one had, qnly so far as -the n shows, dump. He was evidence apparently in complete Everything behalf, charge done there on defendant’s so far there. shown, super him done or at his direction and under his years. employed about five testified he there vision. He “Mr. Eyennann, president company, Mr. testified that defendant *7 charge dump” July, 1926, in said was of the in when he Gastreich warning presence about which the was signs, certain the of evidence conflicting', up. Tf in put charge had been Gastreich of the was presumably dump then he was at the time of the accident for there July, attempt any change respect in that between no to show ’as 1926, and November 1927. oh both sides evidence persons using quarry dump that he directed all where to shows testimony and load. from the Kalinowski each It is inferable Connors, statement, in he directed out that on occasions had set our edge just backing up quarry drivers in to the of the as other truck By him on this his own testified he directed occasion. testimony keeping up was he it who looked after the barrier edge quarry. short, In at of the as we he said was maintained everything quarry that stated, have defendant did and about the conducting through employee in its business there it did and its authority made his act attempt Gastreich. no to show that for in scope appeared or ivas narrower than it there was restricted it conduct, viz., plenary, his acts to be from and it did not acquiesce required and in all he did. The instructions know jury negligently directing plaintiff to find that Gastreich in to back etc., quarry, so, near he truck too if did was act his by scope authority given His ing employment. within the as by knowledge as him defendant’s and defendant or exercised with by consent, provable any fact, like facts circum other ample jury There from which in evidence. evidence stances did, acting scope within might find, as it em responsible question. for his act ployment so as to make defendant in that, (b) knowledge, Appellant stresses the fact to- backing up quarry in danger the act of inhered holding voluntarily in where cases substance that one cites realizing places dangerous situation, unnecessarily himself in a exposes hazard to which he and is danger thereof and the himself damages injury notwith thereby he cannot recover such injured negligent dangerous brought standing situation was about tiré argues appellant though further And even another. act testified, negligent he himself was in him he Gastreich directed. relying upon Gastreich’s direction. We examined have obeying judgment justifies in and others find our cases cited and. none sufficiently facts of the instant case or that is holding on the such Slagel -require specific notice. As said in v. in facts to its similar 432, 435, 122 S. Co., App. 138 Mo. W. Nold Lumber Chas. A. might facts which appear differences in the nature of this in cases great legal may a difference in the result. Let be as- small make though dumped par- that, plaintiff had never before sumed spot question, he knew should have seen that there was ticular log danger inherent bumping or barrier there realized the no guard against that proceeding prudently He was that situation. danger getting make careful stopping out of his truck to acquaint himself with the exact and the look so as better to distance Gastreieh, representative in physical when defendant’s conditions apparent authority, interfered, stay him bade the truck and mov guidance, promising back him stop. under His to tell when to He rely him- upon not solicited Gastreieh’s assistance. He intended to permitted misjudged self. If he had been to do that and had speed backing, distance or his or for some such cause had backed seeking over the and were now to recover on account defend- failing log negligence provide bumping we ant’s or barrier question with which would have different to deal. But such is this case. We cannot him overlook Gastreieh’s direction to and the *8 charge premises fact Gastreieh was in in apparent that of authority representative. And, assuming there as the owner’s that slowly did, carefully moved back as as he testified he guided carefully if him him stop Gastreieh told when to as reasonably promised and as expected, lie he would not nothing hurt. Under circumstances have been we see unnatural Gas- or obedience upon unreasonable to and reliance treich’s direction. “ question . . . contributory The of negligence jury is for the conclusively conclusively unless the evidence it. shows It is not proved may shown when from the facts reasonable men draw dif Belting Co., 12, ferent conclusions.” v. Schultz 299 Mo. [Albrecht 23, 400,W. 22, 252 S. And see Cech v. Mallinckrodt Chemical 403.] (2d) 509, 20 S. W. 323 Co., Mo. and cases. in this It cannot be said case that the evidence conclusively shows guilty negligence have been causing to contributing or injury. question to That was jury submitted to the by in- an given request at defendant’s struction was adversely decided defendant. to rejection
II. Complaint is made of the testimony of certain offered defendant. Its witness Ramstein “I testified: have been using dumps years.” Up for several point testimony, to that in his concerning dumps that is all he had said knowledge other or his experience thereof or therewith. Defendant’s put counsel then this question: your experience dumping quarries, at “From various your knowledge existing quarries from and from conditions at various you dumped, your knowledge from where have of the conditions Pennsylvania existing quarry (defend- and Meader at Streets you quarry) dumped ant’s when there from 1925 to state you dumped edge whether not all of the or times that there quarry safeguarded, well, condition, as as safe a edge any quarry you it, dumped as other ever in.” Plaintiff’s question objection sustained, called for a conclusion was whereupon defendant offered prove grounds to the witness that the quarry Eyermann reasonably- in a “were safe for condition edge dumping ground, a use as and that the the embankment any witness) quarry (the n as a safe condition other ever rejected. dumped in;” of proof question which offer Avas only the witness called for the conclusion of but asked a com- quarries parison showing Avithother the conditions of about which no quarries may made. Such other had been not have been conducted may manner customary reasonably in the not have well safeguarded. proof objectionable. The offer of was even more vice and contained the same further included the offer have grounds reasonably that the Avere witness state safe condition dumping obviously a as, ground, for use conclusion which it was facts, jury for the draw from all the not for the witness to state. rejected. testimony properly The offered assigns Appellant in that
III. error the court refused to requested by give withdrawal instructions Plaintiff certain it. describing physical quarry, petition, after situation at the servants, through etc., charged defendant, in substance that: its etc., negligently upon him drive his truck to and directed excavation; him it to drive his truck back so directed give any him of said excaA'ation failed to wards negli Avarning approaching close; too signal that he was log bumping or block gently provide failed to *9 negligently provide failed barrier other excavation; any to or edge the prevent at the the excavation to of protection means of D requested falling Defendant’s Instruction therein. truck from follows: reads as jury among charges neg- the instructs the of
“The court against charge is plaintiff defendant that de- ligence the made log bumping provide bumping at or to a block fendant failed quarry the mentioned in the edge embankment of evidence. near the charge your is tluit this withdrawn instructed you “And are from ground.” is to plaintiff not entitled recover on that consideration instruction, E, sought defendant have similarly worded to |By jury charge neg- of the the the consideration of from Avithdrawn any barrier at the of excavation. failing provide the ligence to evidence, prove alleged both tending of the -facts to There AAras facts Under all the and circumstances sought withdrawn. be to issue as to a submissible whether or not at least evidence (cid:127)884 provide bumping log
failure negligence to or other barrier on part. Moreover, defendant’s whether or not have would recovery ground negligence been barred of contributory on the of acting had Gastreich, he hot under the direction exist of quarry ence protecting or nonexistence of a barrier of (cid:127)is-inextricably necessary interwoven with other facts to be into taken appraising parties consideration in the conduct of the and determin ing question negligence. example, For if there had been protection prevent barrier or other such as Would have tended to going might truck jury from over the have believed vigilance situation called part for less on the of Gastreich direct ing there, as he moved if backward than no such harrier were and vice versa. We need not consider whether in the withdrawal sought proper they merely structions would have been to tell jury' ground could not recover on the of absence bumping log above, or barrier. As intimated absent such barrier question and absent also the direction, plaintiff’s of Gastreich’s al leged contributory negligence question. present would a different sought These jury instructions went farther and to tell the those charges negligence considered, were might not to be which well jury have been understood to mean that which upon the facts they based and which plaintiff’s were prove evidence tended to were be Those facts were part picture too much a considered. of the Gettys In be'blotted out. v. American Car and Foundry Com 787, 322 pany, 797, (2d) 85, 16 Mo. S. W. we thus stated the giving instructions, rule: “The though withdrawal even proof particular record^ lacks sufficient to submit specification sought negligence withdrawn, depends to be upon relativity their to the facts in evidence. is a cardinal rule that a withdrawal may given, instruction not be if it affects the facts of specifica upon liability may tion justly predicated.” be We think properly [See, also, those instructions were refused. on point, this Ry. Co., F. Henderson v. St. Louis S. 284 S. Mo. W. 788.] IV. up question We take now $3,100 item in the petition alleged verdict. Plaintiff’s injuries as a result of his regular “he has been unable to follow his usual occupation delivering coal, required ice employ help and has been stead, wages ers in his labor, has lost the or income of his aver aging $1,800.00 same, per year amount and will continue to lose given the future.” Plaintiff’s instruction on the dam measure of ages jury, upon finding authorized the the facts hypothesized, among *10 plaintiff, award other damage, items of any, the loss if “of earnings plaintiff’s delivering work of coal,” ice and not exceeding per during $150 mouth time, any, if he was unable'to' (cid:127) Work injuries; because of his subject The- mostly given evidence on this by plaintiff’s wife following: and showed substance the Plaintiff had in the- ice 1927, and coal business since April, prior seven about months to injury. bought his business, route,” He Ap- “the $300. for parently together the route with an worth $100 old truck about constituted capital bought his investment. He and from ice coal- same, dealers and it,” sold delivered “peddled and to his customers. Though clearly shown, gather keep we that he did not a stock bought only fcon day day hand but as he sales -meet- made or from to to (wife) demand on his kept route. Witness for him the books and was familiar earnings. with his and business Pie had no other source of report receipts income. He would her day each disbursements and she entered same in the book. The difference between receipts earnings, profits' disbui’.sements she called or cross-examination, these she entered book. On when' produced book had been being from court and she was examined put it she paid said she did not down ice or the amount for or coal though it, the amount received prices, she to the but testified only put “profits,” down the is—the difference between paid reckoning amount out and In profits the amount received.
earnings depreciation she took no account on There the truck. was none on the dis- old truck. Plaintiff traded it at time not 'depreciation closed on a new one. She did not on the new -reckon appeared truck. property there was no other on there depreciation. preceding could have been For the seven months earnings injury, “profits,” though varying in dif- months, averaged average per monthly ferent $300 month. His net earnings injury per since his $100 have been month. Prior to his doing injury plaintiff was the work the aid of one himself with helper paid per $50 practically whom he month. There other no expense. per paid $50 helper month is be from deducted profits. per 14, 1927, during $300 month Prior to November season, greatly summer the sale of ice exceeded that of coal. From 14, October to November sale of ice much less than it had been in the warmer months. The relative amounts of ice and 14, 1927, after November coal sold is not shown. But the witness business, more,” said had “more not whole lot time injury trial 1927. of the than before November Since his any up to the time the trial had been unable to do except compelled employ work to solicit orders and had been two steadily, per paying many $100 them month men each. “We have as customers, pa3r men, figure we have I but these two that is how month, only pay make a hundred dollars a we we two hundred dol- now, helpers per month, paid fifty lars before we dollars figure per helper. month to a You can’t the business close.” The books, though available, in evidence. were not introduced
886
Appellant did below evidence relative contends here as it that the earnings speculative, to plaintiff’s profits to is and too indefinite recovery objected damage. It trial authorize that item of of sought theory to to such evidence on and that the loss be shown that damage. considering proper question was this not a element In of petition to kept sufficiency plaintiff’s is be to mind that the of challenged damage and that under the plead this element of is not given jury permitted to did instruction was not and to the earnings, only the but prospective not recover for loss of future or was his re- he trial. Nor up loss to the time sustained such, arising covery for out of invest- profits the loss business operation enterprise. It was rather for ment in and a business earnings representing value personal the loss of his time or his merely insignificant capital of the time. His investment personal performance personal services. The incidental his to- largely are predominated. profits really In such element case personal earnings, may shown as an aid to the nature of be p. 8 R. L. jury determining the time lost. C. the value of [See 37, (Pa.), 474, 38; Philadelphia Reading Ry. Co. secs. Baxter v. & Annotation, 510; Slaughter (Ky.), 504, Gregory 9 A. L. R. v. p. 1228, S.) 247, (N. 8 L. 99 S. W. R. A. and notes.] 495, Ry. (Mo.), v. 220 S. W. Metropolitan In Ganz Co. Street injuries, that, personal “It is suits it is said: well settled for earnings may damages profits recover on account of loss business, earning are ascertainable provided profits in his such or reviewing citing prior certainty;” several de with reasonable case, c. “Loss In 220 S. W. l. the court said: cisions. the same ‘earnings’ thing.” and loss of mean the same of ‘time’ time Railway Slaughter Co., 116 Metropolitan v. It was so held Street 269, 275, 23 S. competent plain W. 760. in this case for Mo. by him earnings made in his ice and coal business tiff to show injury. by his and his loss thereof caused urged specu But it is the evidence indefinite and is too claimed recovery lative to afford basis of for the loss of reasonable earnings. persuaded. We are That books were not so kept precision show of his business with and did not the details earnings computed deprive items from which were did not or the net right earnings if him the for loss of such such loss could recover notwithstanding certainty, vagueness with be shown reasonable degree Plaintiff’s with a fair of definite of the books. evidence shows earnings during average his for the months ness that net seven injury prior had conducted and coal to his were his ice business month, helper. month per per paid $300 $50 The evi less show time of the his dence tends to thereafter trial but, earnings approximately volume of business and were same work, earnings owing net were inability average to do the only per $100 month, being the difference fact- accounted for that he pay had to per $150 help. more month for That evidence indicates a per $150 loss of injury. jury month due to his awarded him per '$100 injury month from the time of his trial. opinion In our supported by competent award is sufficient evidence. lengthening Without further opinion this *12 reviewing following authorities we refer to the cases in which we
our conclusion support: herein finds Metropolitan Ganz v. Ry. Co., Devoy supra; Co., v. St. 192 Louis Transit Mo. 91 140; S. W. Overstolz, v. Gildersleeve 90 App. 518; Mo. Griveaud v. St. Louis, etc., Ry. Co., 33 App. 458; Mo. Sinclair v. Columbia Telephone (Mo. App.), Co. 588; Mabrey 195 S. W. v. Cape Girardeau & Jackson Co., Gravel 92 596; Road App. Mo. and Paul v. Omaha St. Ry. Co., Louis 82 App. Mo. 500. V. Appellant $5,000 contends that the award of plain physical injury tiff’s is thirty-three years excessive. Plaintiff was old at injured. the time he was only “grammar He a had school education.” injury good Prior to his he had in been health. His injury. evidence tended to show a severe He was cut bruised and head, about receiving the a long; cut three inches both ears were torn, quite badly; one injured and he ivas in part the lower his back hips. and his He well, easily testified that he sleep does not is excited, gets dizzy backwards,” if he “rides does not seem able to place “sit in one squirming around;” without “I always have head- ” aches, which was accident; not true before sharp, piercing the he had pains in his back hips and after the pain accident and still suffers in hips; right joint his back and his hip stiff still time the trial. The evidence shows he was still unable to manual labor do required such carrying in testimony on his business. The medical tended to show very that he had received painful a severe and strain in his back. One doctor said: “I would call condition in spasm his back a muscles, strain or figured ... I he must vertebrae;” have strained the lumbar and that excitable ivas and did not rest well. testimony The medical further tended to show that he still hip has limitation in of motion joints, limp, walks with a cannot body freely, bend his still has the spasms muscular gives muscles of back and evidence of right pain joint. hip Dr. Max plaintiff twice, who examined Wednesday Sunday and on trial, next before testified right had suffered a loss of sensation in hip; witness’s joint opinion were hip there adhesions in the strain; and sacroiliac joint hip was stiff and the muscles thigh of the back and spastic; were that the same present conditions were at each examina- tion, opinion permanent. in witness’s are He further testified: always “He pain; had nervous tremor. He when he tried March, Dr.'Flock, examined who he shook.” to bend over limita- trial, testified days also again before ten which he hip spasms, the muscular joints and in the of motion tion “will be- injuries plaintiff’s injuries and that to tendon attributed still trial was the time Plaintiff at practically permanent.” belt supporting still wore injuries taking treatments for his body of -the time. most brace about his probable permanency the nature In view of neces- future earning capacity injuries and diminished say wC cannot suffered pain has resulting sarily therefrom $5,000 is the award excessive. sup- is fairly verdict tried and the appears to have The case in tbe error reversible find no ¥e by substantial evidence. ported accordingly affirmed. is circuit court judgment of the record. Fitzsimmons, GO., concur. WestMies C., adopted opinion is by'Cooley, foregoing PER CURixVM: The judges concur. All the court. opinion of the as the *13 Attorney- Shartel, Stratton Relation of Missouri State of Ewing Bland C. Relator, H. Trimble, General, v. Francis Henry Ap Judges City Court of L. of the Kansas Arnold, (2d) peals. W. 37. S. Two, September 1933.
Division