Holman v. E. E. Souther Iron Co.

152 Mo. App. 672 | Mo. Ct. App. | 1911

NIXON, P. J.

I. The appellant’s principal contention in its assignment of errors is that its demurrer to the evidence should have been sustained because the evidence showed that the presence of the brick making machine was not the proximate cause of the plaintiff’s injury and that recovery could only be had where the negligence complained of was the proximate cause of the injury.

It is the duty of the master to furnish the servant a reasonably safe place and reasonably safe appliances in which and with which to do the master’s work. [Doyle v. Missouri, K. & T. Trust Co., 140 Mo. 1, 41 S. W. 255; Minnier v. Sedalia, W. & S. W. Ry. Co., 167 Mo. 99, 66 S. W. 1072; Loehring v. Westlake Const. Co., 118 Mo. App. 163, 94 S. W. 747; Bloomfield v. Worster Const. Co., 118 Mo. App. 254, 94 S. W. 304; Seals v. Whitney, 130 Mo. App. 412, 419, 110 S. W. 35; Rigsby v. Oil Well Supply Co., 130 Mo. App. 128, 108 S. W. 1128; Bokamp v. Chicago & A. R. Co., 123 Mo. App. 270, 283, 100 S. W. 689.] .

In this case, the admitted evidence shows that the master was fully informed of the nature of the danger of allowing the brick machine to remain in proximity to the toggle machine on which plaintiff was at work. The plaintiff himself on the day of the accident complained to the superintendent of the defendant company that the brick machine was in the way, to which the superintendent replied: “Well, George, that is not very dangerous, that machine setting there; you go ahead and be careful and make that order up that has to go out at once, the people are in a hurry for it, and I will move the machine tomorrow. I will move it out of the way for good then.” In an action for injuries where the evidence shows that plaintiff complained to defendant’s foreman of the danger and received assurances that it would be attended to, this removes the question of assumption of risk. [Fouts v. Swift & Co., 113 Mo. App. 526, 88 S. W. 167; Hough v. Railroad, 100 U. S. 213, 225.] Under the circumstances disclosed in this record the plaintiff as servant need not have quit his work if he reasonably believed that by the exercise of proper care he could safely use the appliances furnished. [Blundell v. Miller Elevator Mfg. Co., 189 Mo. 552, 88 S. W. 103; Whaley v. Coleman, 113 Mo. App. 594, 88 S. W. 199; City of Owensboro v. Gabbert (Ky.), 122 S. W. 178.]

In this case the evidence conclusively shows that the machine plaintiff operated was one in which the sheets of steel sometimes “buckled,” and that it then became necessary for the operator to stop the machine quickly in order to save the piece of steel from being-destroyed. This the operator accomplished by quickly removing his foot from the treadle of the machine, but when' the foot was removed, the die of course came down onto the plate, but it would then stop because the motive power had been removed by the operator lifting his foot from the treadle. The evidence further shows that the customary and usual way for the .operator to remove his foot from the treadle was by a quick movement to the right of the treadle, thus leaving the operator with his feet spread somewhat apart in order to balance himself, while with his arms outstretched he handled the sheet of steel before him. Prom the construction, and movement of the machine by applying the foot to the treadle, the machine was necessarily suddenly stopped by the foot being removed, and the movement was necessarily a quick one. The “buckling” of the plate in the machine was not a common occurrence but an emergency. In attempting to make the rapid movement to stop the machine, the plaintiff drew his foot off the treadle in the usual and customary way, but instead' of his foot coming off the treadle and onto the floor, it. struck against the pully wheel of the brick machine; this unexpected interference threw the plaintiff off his balance and his arms and torso were thrown forward and his arms went under the die. Realizing his danger,he concentrated his strength of body and will and drew back towards safety. His arms and hands were out from under the die, but his finger tips were caught and crushed. The injury having occurred under these circumstances, is the appellant justified in its claim that the injury was not the proximate result of the nearness of the brick machine? “Proximate cause” has received at the hands of the courts many definitions. The proximate cause of an injury has been defined as that cause which in the natural and continuous sequence unbroken by an intervening cause produces the injury and without which the result would not have happened. [Saxton v. Mo. Pac. Ry. Co., 98 Mo. App. 494, 72 S. W. 717.] It has otherwise been defined as the efficient cause or the one that necessarily sets the other causes in operation. [Frisbie v. Fidelity & Cas. Co., 133 Mo. App. 30, 112 S. W. 1024; Harper v. St. Louis, M. B. T. Co., 187 Mo. 575, 86 S. W. 99; Lawrence v. Heidbreder Ice Co., 119 Mo. App. 316, 93 S. W. 897.] As was said by this court in the case of Gillespie v. Louisville & N. R. Co., 144 Mo. App. 508, 129 S. W. 277: “While the negligent act must in all cases be the proximate cause of the injury in order to hold the defendant responsible therefor, yet, if the injury follows as a direct consequence of the negligent act, it cannot be said that the defendant is not responsible because the particular injury could not have been anticipated.” It might be said in this case that plaintiff would not have received his injury unless he lost his balance in the operation of the machine and that he might have lost his balance even though his foot had not touched the pulley wheel of the brick machine, or even if there had been no brick machine in the building, or even if the plate of steel • had not “buckled,” or even if plaintiff had not been engaged in stopping the machine, but we think this would be begging the question. He was operating the machine and by reason of the mischance in the slipping of his foot the dangerous proximity of the brick machine directly caused his injury. We cannot state the unanswerable reply to the appellant’s position that the slipping of plaintiff’s foot from the treadle and its contact with the brick machine was the proximate cause. of the injury in more apt or cogent language than that of Judge Smith in the case of Musick v. Dold Packing Co., 58 Mo. App. l. c. 333, which was an action by plaintiff for damages due to slipping into defendant’s uncovered tank. In that case, as in this, the defendant contended it was not liable because the slipping was the proximate cause of the injury. The reply of the court was as follows: “It is true that if the plaintiff had not slipped his limb would not have been, plunged into the hot wmter tank. It is equally true, that though he slipped, the disaster would not have overtaken him had not the tank been uncovered. The slipping was not the sole cause of the injury. The latter would not have occurred except for the presence and co-existence of both causes. The cause of the plaintiff’s slipping was altogether accidental. If it was the sole cause of the injury the defendant is not liable. But the injury would not have resulted had not another cause combined with the accidental cause. If the plaintiff was in the exercise of ordinary care and prudence at the time he slipped and the injury is attributable to the absence of the cover over the tank together with the slipping, then the plaintiff should recover. If the direct and proximate cause of the injury was the uncovered and unprotected condition of the tank, then plaintiff would be entitled to recover though the slipping of the plaintiff contributed to the injury.” And as said in the case of Trout v. Laclede Gas Light Co., decided at this term of this court: “It has also been held that if one, by some involuntary mischance, precipitates a casualty resulting-in injury to himself, but was exposed to danger of the casualty of another’s negligence, the law does not always construe his own mischance, instead of the prior negligence of the other party, to be the proximate cause of the injury, and shut him off from recovery. Whether the injured party will be denied relief depends on whether he himself was guilty of negligence that proximately caused the harmful accident.” Of course, in the case now under consideration, if the slipping and falling- were the result of the negligence of the plaintiff, there could be no recovery, but the proof of such negligence, being an affirmative defense, rests upon the defendant, and the law will not presume the negligence of the plaintiff in the absence of evidence to that effect. The question of the proximate cause of an injury is ordinarily one of fact, for the jury; and in an action for damages for injuries caused by defendant’s negligence, whether or not the injurious consequences that resulted from such negligence are such as ought reasonably to have been foreseen is for the jury. [29 Cyc. 639.] Under these authorities and the admitted evidence in this case, the appellant’s demurrer to the evidence was properly overruled. The master’s negligence, if proven or conceded, eliminates the question of assumption of risk. [Wiley v. St. Joseph Gas Co., 132 Mo. App. 380, 111 S. W. 1185; Warren v. Chi. B. & Q. R. Co., 113 Mo. App. 498, 87 S. W. 585; Tinkle v. St. L. & S. F. R. Co., 212 Mo. 445, 110 S. W. 1086; Kirby v. Manufacturers Coal & Coke Co., 127 Mo. App. 588; 106 S. W. 1069; Huston v. Quincy, O. & K. C. R. Co., 129 Mo. App. 576, 107 S. W. 1045; Blundell v. Miller Elevator Mfg. Co., 189 Mo. 552, 88 S. W. 103; Strickland v. Woolworth & Co., 143 Mo. App. 528, 127 S. W. 628; George v. St. L. & S. F. R. Co., 225 Mo. 364, 125 S. W. 196.]

II. The court at the request of the plaintiff gave the following instruction as to the measure of damages.

“3. The court instructs you that if you find for plaintiff, you should, in estimating his damage, consider his physical condition before and since receiving the injuries for which he sues, as shown by the evidence, the physical pain qnd anguish, if any, suffered by him on account of his injuries, as shown by the evidence, Ms loss of time and damages, if any, as you may, from the evidence, find it reasonably certain he will suffer in the future therefrom, and you will find a verdict for such sum as in your judgment will, under the evidence, reasonably compensate him for such injuries, not to exceed the sum of $1000.”

The giving of this instruction is assigned as error by appellant because it permits a recovery for damages not pleaded and because it does not limit the plaintiff’s damages to the amount claimed in the petition and because it broadens the issues made by the petition. An examination will show that this instruction was taken word for word in its-essential parts from the case of Curtis v. McNair, 173 Mo. l. c. 290, 73 S. W. 167, omitting the clause referring to expenses incurred for medical treatment, and as was said in that case: “The objections offered to this instruction are two, viz: That ‘it entitled' plaintiff to recover damages for his loss of time in the future/ and that it authorized a recovery for £sums that he expended for medical treatment.’ These objections are founded on the idea that no claim is made in the petition for such items of damage. We do not understand the instruction to call for an estimate of loss of time in the future, but for damages which the jury may find that it is reasonably certain the plaintiff will suffer in .the future. There is a statement in the petition that the plaintiff is permanently injured and there was evidence tending to sustain that statement.” The claim is also made in the present case in the petition that plaintiff’s injury was permanent and the evidence abundantly tended to sustain such allegation. The evidence showed that plaintiff earned from ten to twelve dollars a week — of five and one-half days —before he was hurt; that he was idle three months by reason of his injuries and since then had earned only seven and one-half dollars a week — of six days; the evidence further showed that he sustained a loss of thirteen weeks at an average of eleven dollars a week, or a total loss of one hundred and forty-three dollars; also, a further loss of five dollars a week for two years, or one hundred and four weeks up to the date of the trial, amounting to $520, showing a total loss in wages sustained by reason of his injury up to the date of the trial of the sum of $663. The verdict returned by the jury was for $1500, which the court reduced to $1150, leaving only the sum of $187 as compensation for his pain and suffering, physical and mental, and for his damages for the permanent injury alleged and proved. Elvery successive step in this litigation will stand the closest legal scrutiny and discloses a conscientious regard by the trial court for appellant’s legal rights. The result reached is in every way a fair and just one and is amply warranted by the uncontradicted facts in the case. The judgment is accordingly affirmed.

All concur.