Hall v. St. Joseph Water Co.

48 Mo. App. 356 | Mo. Ct. App. | 1892

GtIll, J.

The plaintiff sued the defendant on account of personal injuries received by him while working in a deep ditch or trench then being dug by the defendant. The plaintiff was one of the gang of laborers employed by the water company in excavating at the defendant’s reservoir. The action is based on the alleged negligence of defendant in so digging the trench that its sides were dangerously steep and unprotected, and that plaintiff was negligently ordered to enter the ditch, and while working there under the direction of the foreman the said walls fell in, and upon him, so that he received serious personal injuries. Plaintiff had a verdict and judgment in the lower court for $2,500, and defendant appealed.

I. The first point we are called on to decide is, whether or not the trial court erred in failing to sustain defendant’s objection to the introduction of any evidence. It seems that defendant’s answer, in addition to a general denial, attempted at least to interpose the plea of contributory negligence by alleging “ that, if plaintiff suffered any damages at all, it was on account of his own negligence directly contributing thereto.” No reply was filed, and when the jury was sworn and the first witness for the plaintiff was put on the stand, defendant’s counsel objected to the introduction of any evidence, stating as his reasons: “ First, because on the pleadings defendant should have judgment; and, second, because the petition does not state facts sufficient to constitute a cause of action,” etc. The objection was' overruled and defendant saved exceptions. The attention of the court was not specifically called to the absence of the reply; nothing, whatever, was said or intimated at the time that this objection to the introduction of any evidence was based on plaintiff’s omission to file the reply. Not only was this matter of objection studiously concealed, but the express attack on the petition would naturally tend to withdraw any attention from-the plaintiff’s omission to file a reply. More than this, the trial of the cause proceeded, and evidence on both sides, for and against contributory negligence, was introduced without objection — just as if a reply in fact had been filed. The first notice of this failure of plaintiff to reply to defendant’s answer occurs in the motion for a new trial. Under the circumstances of this case defendant cannot profit by this mistake or careless omission of plaintiff’s counsel. It has been repeatedly held by the appellate courts of this state, that the failure to file a reply to the new matter of the answer cannot be taken advantage of on appeal in cases where the cause was tried below, as though the reply had' been filed. Thompson v. Wooldridge, 102 Mo. 510, and cases cited.

II. The next error assigned relates to the testimony of Ur. Cloud, a physician' who examined the plaintiff’s condition more than two years after the accident. Over defendant’s objection the doctor was permitted to testify as to Hall’s physical condition at the time he examined him. He gave it as his professional opinion, in effect, that plaintiff was then affected with a case of chronic pleuritis; that he had no means of knowing what produced this inflammation of the pleura, but that it might have resulted either from cold or personal injury, etc., and that, in the case of this plaintiff, the ■disease was incurable. Defendant’s objection to this testimony seems to rest on the fact that the doctor was unable absolutely to ascribe the disease to the injury received by plaintiff in the ditch. We think there is no merit in this objection. Plaintiff and other witnesses for him testified that he was a sound and strong man before the accident, and had complained ever since of these pains in his breast, back, etc., and had been unable to engage m hard work as before. The evidence of these witnesses and this physician all tended to-prove serious injuries and bodily suffering. as a result of the burial in the trench.

III. The next complaint in order of counsel’s brief is, that the court, by its instruction, numbered 3, confined its case to. the alleged negligence of defendant in the-manner of the construction of the trench, whereas, it is claimed, the petition bases the right to recover alone-on the negligent order of defendant commanding and requiring plaintiff to work in a dangerous place. The-rule, it is true, is well settled, that plaintiff will not be permitted to allege one cause of action and recover on another. He will not be allowed to give notice through his petition or complaint of one default or careless act, and at the trial prove another. The authorities cited by defendant’s counsel fully sustain this-reasonable rule. But here is quite a different case. The petition complains of both a careless construction and dangerous condition of the trench, as well as the negligently ordering the plaintiff to work therein. So, too, when all the court’s instructions are read together as one charge, there was no chance for confusion or misunderstanding on the part of the jury. They were clearly advised to the effect, that if the walls of the trench were so constructed and maintained as to be in a dangerous and unsafe condition, and that defendant knew or might have known thereof by the exercise of ordinary care in time to have corrected the defect and have avoided injury to the plaintiff, but failed to do so, and if the plaintiff in pursuance of defendant’s orders-entered into said ditch, and 'was injured without any fault or negligence on his part, the plaintiff was entitled to recover. The instruction complained of, when read in connection with others given, leaves no room to question the correctness of the court’s charge to the jury, and that point, therefore, must be ruled against defendant. Foster Vinegar Co. v. Guggemos, 98 Mo. 397.

My associates, however, do not agree with me as to the proper construction of the petition. In their opinion the gravamen of the petition is to charge alone negligence in ordering the plaintiff into an unsafe place, which defendant knew to be unsafe. But we all agree that, however this may be, the defendant is in no condition to complain of the instructions submitting an issue as to the dangerous construction of the trench to the jury, since, at its request, the court submitted the same issue, as is shown ,by defendant’s instruction, numbered 5. This error then (if error it was), being' common to the instructions of both parties, cannot now be made the ground of complaint by either party. The matter thus clearly falls within the principle of the maxim, “ Qommunis error faeit jus.” Those remarks are made in face of the assertion by defendant’s counsel, in reply brief, to the effect that defendant did not ask the trial court to give said instruction, numbered 5. The record, fully considered, shows it otherwise. Defendant requested 'the trial judge to instruct the jury as follows : “5. The court instructs the jury, that if they find from the evidence, that the work in digging the trench described in the evidence was done in an ordinary cáreful and prudent manner, then they must find for defendant, and the mere fact that the walls fell is not sufficient to charge defendant with negligence in their construction.”

Now the court gave this instruction with the interlineation of these words (just following “prudent manner”), to-wit, “and that an ordinarily prudent man would not have thought it necessary to support the walls under the circumstances,” and it was this interlineation alone that defendant’s counsel complained of as is shown in the fourth ground assigned in the motion for a new trial. It is, therefore, clear that the substance of this fifth instruction is just as it was requested by the defendant.

IV. Defendant’s counsel in their fourth assignment of error object to the sufficiency of the petition in that it fails to state that plaintiff was ignorant of the dangerous condition of the trench. Clearly this was not a defect. Such an allegation only relates to the defense of contributory negligence, and such matter is strictly 'that of defense which must be alleged and proved by defendant. Plaintiff was not called upon to negative this matter in his petition. This is too clear to require further comment. Young v. Iron Co., 103 Mo. 328.

V. It is scarcely necessary to spend time in discussing the question as to whether or not this case ought to have gone to the jury. We have carefully read and considered all the evidence as set out in this record, and find there was ample to justify the finding in plaintiff’s favor on every material allegation of the petition, and we cannot, therefore, disturb the judgment on that account. The foreman Lewis, who ordered plaintiff into the place of danger, was clearly not the fellow-servant of plaintiff, but occupied the position of vice-principal. He was there in charge of the business of defendant corporation, with full power and authority to command when, where and how this plaintiff and others of the gang should -work. That he, Lewis, had no authority to employ and discharge the men, did not destroy his situation as the alter ego of the master. This is not the test under the decisions in this state. Moore v. Railroad, 85 Mo. 588-593; Murray v. Railroad, 98 Mo. 575; Cox v. Granite Co., 39 Mo. App. 429.

VI. The complaint that the damages awarded by the jury ($2,500) are excessive, we think is likewise without merit. From this testimony the jury might reasonably find that plaintiff will never recover from the injuries received. A large mass of earth fell from the top of the trench, a distance of eighteen or twenty feet, onto the plaintiff, covering him to such an extent that it required from fifteen to thirty minutes to relieve him. Indeed, an associate in the trench was killed by the caving of the earth upon him. The evidence tended to prove that, when the cause was tried three years after the accident, plaintiff was still suffering from the results of his injuries, and the. physician, Dr. Cloud, gave it as his opinion that he never would recover. .

The judgment must be affirmed.

/All concur.

CASES DETERMINED BY THE ST, LOUIS AND THE KANSAS CITY COURTS OF APPEALS. MARCH TERM, 1892;