Ganey v. Kansas City, 259 Mo. 654

259 Mo. 654 | Mo. | 1914

OPINION.

I.

BOND, J.

(After stating the facts as above.) — Appellant’s first point seems to be that the testimony of its witnesses stating the measurements made by them “must, prevail” over that of other witnesses testifying without measurement. Since the law is settled in this State that the evidence of the latter kind is competent (Gardner v. Railroad, 223 Mo. 389'), it necessarily follows that it has some probative force and its credibility and relative weight as compared with the testimony of the former kind, becomes a question for the triers of the facts.

It may be. that the jury, if they had believed the witnesses who testified as to actual measurements, would have accepted their testimony as to the distance from the post to the wall rather than the statement of its distance given by eyesight measurements of other witnesses. But the credibility of the two sets of witnesses was a matter for exclusive determination by the jury whose powers in that respect cannot be taken from them under our system of laws. As plaintiff did not admit the correctness of the measurements claimed to have been made by defendant’s witnesses, either on the trial or in his pleading, it is evident that we cannot pass on the credibility of defendant’s witnesses or the accuracy of their statements without invading the province of the jury.

The contention of defendant that the evidence of this witness as to measurements “must prevail” is therefore disallowed.

n.

It is insisted that the presence of the post alongside of the runway over the top of the wall, was not negligence, but was an observable object which became one of the conditions under which the work of wheeling the barrow laden with loose concrete was to be done, and that any danger caused thereby, was assumed by plaintiff in entering into contract with defendant.

There was evidence tending to prove that this post was erected to carry a light for the benefit of the workmen employed in certain duties appertaining to running a main through the wall of the water basin which were performed at night, but that it was left standing after the work of the men engaged in the night shift had been completed. It is clear, therefore, that the existence of the post was not an auxiliary of the day’s work or one of its natural conditions, and whether the omission to remove it was negligence or not depended on its propinquity to the runway whereon plaintiff was required to work and the probability of its causing injury to him when so engaged. The facts bearing on these elements of negligence were properly submitted to the jury whose verdict in favor of the inference of negligence is not therefore subject to review.

Neither did the plaintiff assume the risk of danger, for that is never done when it arises from the negligence of the employer and is not a natural and reasonable incident of the work which the servant contracts to do. [Charlton v. St. L. & S. F. Ry. Co., 200 Mo. l. c. 433; Curtis v. McNair, 173 Mo. 270.] We therefore overrule the assignment of error as to lack of negligence of defendant and the assumption of risk by the plaintiff.

III.

It is claimed plaintiff’s own negligence directly contributed to his injury, and therefore the trial court should have directed a verdict for defendant. There was evidence tending to prove that plaintiff was acting under the command of a representative of defendant .in the performance of the work. The post near the top of the wall which plaintiff was required to travel — though suggestive of care to avoid a collision — did not glaringly threaten imminent danger to a man of ordinary prudence engaged in the work assigned to the plaintiff. Before the happening of the injury to plaintiff, he had just witnessed the safe performance of a similar task by a fellow-workman. This was an objective refutation of the presence of danger so glaringly imminent and threatening as to deter a man of ordinary prudence from performing the work under the command of the foreman. Where reasonable minds can differ as to the inferences to be drawn from facts and circumstances tending to prove contributory negligence, the question is one for the jury. And so we think it was in this case. [Huhn v. Railroad, 92 Mo. 440; Butz v. Construction Co., 199 Mo. l. c. 287.]

IY.

Finally it is complained that instruction number one given for plaintiff was erroneous in that it assumed a fact in issue, to-wit, that the danger zone between the post and the wall was “one foot or less.” An inspection of the following language of the instruction shows that this assignment was well taken:

“And if you further believe and find from the evidence that the defendant, and its agents and vice-prin-, cipals, negligently and carelessly caused and permitted said post to be and remain in dangerous and unsafe proximity, to-wit, within a foot or less of said wall, and negligently and carelessly failed and omitted to remove the same from said dangerous and unsafe position, if yon so find, and that, ’ ’ etc., you will find for plaintiff.

In his petition in this case plaintiff had used the above quoted language intending to state thereby that his cause of action was predicated upon the fact that the pole stood within a “foot or less” of the wall, and making no claim to redress if it stood at a greater dis-stance. In drafting his instruction plaintiff adhered with too much literalism to the language of his petition. The issues which should have been submitted to the jury were whether the post was within one foot or less of the wall and also within dangerous proximity to the work required to be done by plaintiff. Instead of submitting those two issues, the instruction assumed that any point within “one foot or less” of the wall was a dangerous position for the post to occupy, and left only one issue to the jury; i. e., whether the post stood within “one foot or less” of the wall.

The error in the instruction might have been avoided if instead of using the term “to-wit” plaintiff had employed the copula “and”. As thus written the instruction would have been unobjectionable, for it would have submitted the issues of dangerous proximity as well as the specific distance pleaded in the petition, to the jury. This error, in the instruction was necessarily prejudicial, for it prejudged the issue of “dangerous proximity” provided the jury should find the pole was standing within “one foot or less” of the wall. [Moon v. Transit Co., 247 Mo. 227; Clark v. Railroad, 242 Mo. 570; Linn v. Massilon Bridge Co., 78 Mo. App. l. c. 118, 119.]

For the error contained in the instruction under review, the judgment is reversed and the cause remanded.

All concur.