190 Mo. App. 471 | Mo. Ct. App. | 1915
This case has been here before and is reported in 151 Mo. App. 234, 131 S. W. 931. It also has been in the Supreme Court and the adjudication which gives validity to the opinion of this court is the adoption of it by the St. Louis Court of Appeals as reported in 165 Mo. App. 5, 145 S. W. 1184. The facts, so far as material at this time to the statement of the case, will be found in the prior opinion, except that at page 238 of the prior opinion of this court it is stated that two stakes were placed on each side of each section of logs, whereas in the case made at the last trial the testimony in behalf of plaintiff tends to prove that there was only one stake and. one place for a stake upon the south side of the logs being unloaded at the time plaintiff was injured, the logs being skidded, in unloading off the car, to the north.
The trial from which this appeal is taken by the defendant resulted in a-verdict and judgment for plaintiff in the sum of $6500.
The burden of appellant’s contention here is that there was not substantial testimony that there was but one socket on the south side of the pile of logs upon which plaintiff was working when he was injured. The testimony overwhelmingly convicts the defendant of error in this contention. M. A. Lands testified positively that there was but one socket; G-. Goddard testified that he did not see but one stake on the south side of this pile of logs; Ben Hodges testified that he
Taking appellant’s contentions in the order set out in its brief we find the first insistence to be that a verdict should have been directed in its behalf because the testimony discloses beyond controversy that plaintiff was guilty of contributory negligence. This contention is devoid of merit and was disposed of adversely to appellant in the prior opinion. We shall not use any space or consume any time by doing more than ruling this contention in favor of plaintiff.
It is next insisted by appellant that its demurrer to the testimony should have been sustained because
Again the appellant insists that the demurrer should have been sustained on the theory that the plaintiff, as between two methods, selected the more dangerous. No such rule is applicable to this case for one reason at least that the plaintiff did not select his
It is also urged that the demurrer should have been sustained because there was testimony conclusive on the proposition that the car was supplied with the number of stakes and sockets which had proved to be safe and sufficient and that the mode of loading the logs and staking them on the car was the mode used in all other cars in like circumstances. The advancement of this argument is due to a misconception of the testimony. As we have above noted the testimony tends to prove that there was but one socket south of the particular pile of logs. Even defendant’s witnesses, including its foreman, testified that one stake on the south side of the pile of logs was not sufficient or considered safe.
For none of the reasons above urged or for other reasons assigned in the brief, equally devoid of merit, should the demurrer to the evidence have been sustained.
Error is assigned on the admission of testimony tending to show that the south side of the track where the car was standing when it was being unloaded was lower than the north side since the petition alleged no defect in the track at this point. Nevertheless the testimony was proper to show the position of the car and the necessity for the efforts which plaintiff, defendant’s foreman and other employees were exerting to get these logs over to the skid on the north side, the only point provided by defendant for unloading them.
The defendant further insists that the plaintiff was allowed to offer improperly testimony that three stakes on each side of each pile of logs were necessary to properly hold the logs on the car. The defendant by its attitude in the trial of the case in effect conceded that two stakes were necessary. As we have before noticed there is much testimony that but one place for a stake was provided and defendant’s own witnesses,
Other testimony to which our attention is directed by appellant, on the question of custom, referred solely to the number of stakes required in the transportation of the logs to the mill. No objection was made to the question because it applied to the cars in transit. The text of defendant’s duty to the plaintiff must be measured by how many stakes it should have had in the car when it was being unloaded under the conditions disclosed in this case. The objection did not specify the point now relied on and cannot therefor be considered, but if we concede that the question went to the sufficiency of the stakes at the time of unloading we yet have an insufficient objection thereto. The objection was that the proper foundation was not laid; that it called for a conclusion and that it was wholly immaterial and incompetent. Such objections are too general to reach the point now contended for by appellant. [State ex rel. West v. Diemer, 255 Mo. 336, 350, 164 S. W. 517.] The contention should have informed the court and the plaintiff in what respect defendant considered no foundation was shown, whether it was a lack of a qualification of the witnesses to speak on this subject or whether there was an absence of the necessary proof of a custom or usage existing elsewhere. Litigants should not be allowed to make objections of this character and then urg'e here points which might have been met in the trial court had the objection been more specific. The plaintiff had a right to call for a conclusion on this, point of custom and it was material to the issue, as appellant itself concedes in contending elsewhere in its brief that it did all that was usual and customary among others in this particular line of work.
It is asserted by appellant that the verdict is exr cessive and the only reason given in its brief therefor is that ‘ ‘ The evidence is clear and convincing that the plaintiff’s own negligence in the care and treatment of his injury at least partially contributed to the loss of his leg.” This was a question of fact for the jury, upon which the defendant requested and was given an instruction. There was ample testimony on which to base this instruction, the jury resolved the facts in plaintiff’s favor and we cannot disturb the verdict on this point.
There clearly being no error committed in the trial of this case the judgment is affirmed.