Hosheit v. Lusk

OPINION.

STURGIS, J.

The foregoing statement of' the facts and evidence disposes of defendants’ contention that a demurrer should have been sustained to the evidence. There is ample evidence to sustain either ground of negligence submitted to the jury in plaintiff’s instructions, to-wit: “First: Whether or not defendants exercised ordinary care to keep said jointer, its knives and table in reasonably safe repair or condition for plaintiff to perform his work thereon; Second : Whether or not defendants exercised. ordinary ■care to furnish braces, or supports or attachments on said jointer to hold the board in position when being run over said jointer.” The defects in the machine thus shown to have existed are clearly the result of negligence of the master. These are not defects which inhere in the machine from its construction and intended manner of use. They are defects due to the failure to repair the machine and keep it operating in the manner it was intended. The -evidence does not show conclusively that 'the plaintiff received his injury from his own act .in placing the board over and letting it come down on the knives instead of placing it flat on the table and pushing it towards such knives. Such cases as Smelser v. Railroad, 262 Mo. 25, 170 S. W. 1124, and Sexton v. Railroad, 245 Mo. 254, 149 S. W. 21, are not applicable to the facts here.

All of the defendants ’ instructions were given and it complains only of instruction numbered two, given for plaintiff, in that it submits to the jury the specific ground of negligence that it failed “to exercise ordinary care to keep its table balanced and level so as not to wabble or tip when being used. ’ ’ The ground of objection is that this instruction thereby submits a ground of negligence not covered by the petition. If so, the error is fatal. [Schumacher v. Breweries Co., 247 Mo. 141, 162, 152 S. W. 13; Black v. Railroad, 217 Mo. 672, 685, 117 S. W. 1142; Allen v. Quercus Lumber Co., 182 Mo. App. 280, 168 S. W. 794.] In determining this point, however, substance and not form must be considered. The same defect or act of negligence may be described or defined by the use of different words or forms of expression. It is significant in this connection that no complaint is made that the instruction does not follow the proof made, yet, no objection was made to the evidence as proving a ground of negligence not alleged. An amendment might then have been made.if necessary. The petition designates the act of negligence in these words: “In negligently permitting the tables to become unbalanced and lower near the head of said jointer.” The proof shows that this table should have been kept balanced and level; that instead of being so kept it became unbalanced so that it tilted or became lower near the head or revolving knives, or, as the witnesses said, “wabbled.” "When substance is regarded, we think that both the petition and instruction sufficiently designated the 'real defects in the machine and that defendants were not misled. One, if not the only, purpose of a petition is to inform the defendant of the facts which constitute the cause of action in such definite and precise terms that defendant will know what facts plaintiff will prove in order that he may prepare to meet the same. Tested by this rule the allegations of negligence as to the condition of this table are sufficient to warrant the proof made and the instruction given.

The defendant offered to prove that the baggage car on which plaintiff was doing this repair work was one which had been and was intended to be used in interstate commerce. The court excluded the evidence because no such issue was made by the pleadings. We need not discuss this question of pleading. The purpose of introducing the evidence was to lay a foundation for invoking the rule as to the assumption of risk adhered to by the Federal courts in interpreting and applying the Federal Employers’ Liability Act, to the effect that a servant assumes not only the risks usual and ordinarily connected with his employment, but also such dangers as arise from defects due to the master’s negligence where the servant both knows of the defects and that same endangers his safety. [Gila Valley, G. & N. Ry. Co. v. Hall, 232 U. S. 94, 101, 58 L. Ed. 521, 524.] The rule is expressed in Seaboard A. L. Ry. Co. v. Horton, 233 U. S. 492, 503, 58 L. Ed. 1062, 1070, in this language: “But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them.” The law as to assumption of risk, as firmly established in this State, is that the servant never assumes a risk occasioned by the negligence of the master (Curtis v. McNair, 173 Mo. 270, 73 S. W. 167); and the only effect that the servant’s knowledge of defects due to the master’s negligence and his appreciation of the dangers arising therefrom has, is found under the rule of contributory negligence that such known and appreciated danger precludes recovery only when the danger is so obvious and glaring that an ordinarily prudent person would not undertake the work in the face of such danger. We had occasion in Hawkins v. St. L. & S. F. R. Co., 174 S. W. l. c. 133, to note this difference in the law of assumption of risk as adhered to in this State and in the Federal courts. We also noted, as we do now, that our Supreme Court,, in Fish v. Railroad, 172 S. W. 340, held that the courts of this State are not bound, even in cases arising under and governed by the Federal Act relating to employers’ liability when engaged in interstate commerce, to apply the rule of law above stated in regard to the assumption of risk as established by the Federal courts. In cases governed by the Federal Act we apply our own rules of law as to assumption of risk. It makes no difference in this respect, therefore, whether the plaintiff w;as, or was not, an employee engaged in work pertaining to interstate commerce and the rejection of the evidence is harmless.

There was evidence that there was another jointer, similar to the one on which plaintiff was injured, in defendants’ shops near the one in question. The defendants predicate error on the following questions and answers relative thereto: “Q. You may state why yon didn’t use it of tener than you did? A. Well, we had another machine there and of course if I had anything to do, I wanted to do a good job, and I would take it to the other machine. Q. Why would you do that? A. Because it was a better machine and a perfect machine and did good work. ’ ’ The objections made at the time to these questions are that the same are immaterial to any issue in the case. Also, these questions and answers: “Q. Now, when you millmen had this good machine over there, you may state whether or not the shopmen were allowed to use it as much as they were this other one? A. Well, of course there is a point there. You see when they brought that machine there, that new one, the Oliver, of course the cabinet men wanted that; they didn’t want anybody else to run that machine; they run it principally. Our mill-men run it some, hut we did very little jointing as a rule. Q. As a matter of fact you may state whether •or not the company had a sign on this good one that you speak of, not to use that, for the coachmen such as Hosheit not to use it? A. It didn’t say coachmen, it said ‘For machine-men only,’ I think. A fellow got cat there and they put that notice up. ’ ’ The objections to these questions are a little broader and add that the only issue to he determined is as to whether the machine used by plaintiff was reasonably safe or had the defects complained of. The objection urged in this court is that the question of whether .the particular machine here complained of was reasonably safe is to he determined by its actual condition and not by comparison with another machine used for like work. This evidence was elicited from plaintiff’s first witness and he seeks with some force to justify this evidence as tending to show that plaintiff was allowed to use the machine he did use and was not a volunteer in so doing — an issue sharply drawn by defendants ’ answer Looking at the merits of the contention, there is no doubt that the master is not required to furnish the safest or best appliance, nor is he to be charged with negligence on a mere showing that a safer appliance might have been furnished. [3 Labatt’s Master & Servant, sec. 931.] If the instrumentality actually furnished is reasonably safe for the purpose and in the manner intended to be used, then that is sufficient. [Grattis v. Railroad, 153 Mo. 380, 403, 55 S. W. 108; Blundell v. Elevator Mfg. Co., 189 Mo. 552, 88 S. W. 103.] The jury were plainly instructed that the law is. as- here stated and could not easily have been misled on this point. So far as comparing the two machines, is concerned, the evidence objected to tends to show that the other machine was a better one and did better work rather than that it was a safer one. There is. little, if any, suggestion in the questions and answers given that the machine used by plaintiff was not as-safe as the newer one. It is probable that the questions, were asked with the view to have the witnesses point out some claimed defects in the machine in question and that would have been proper. To be reversible, error the evidence 'elicited must be so prejudicial to' defendants as to raise a probability that the jury were-led to believe that because the new machine was a safer-one, then the defendants were negligent in having plaintiff use the one less safe. This is not probable when, an instruction was given that defendants were not to-be held negligent for failure to furnish a machine of a particular type and with the latest improvements, but that all the defendants were required to do was to-furnish a machine reasonably safe. When the witnesses-were asked directly as to the comparative safety of the two machines the evidence was excluded.

The evidence admitted, so far as it bears directly on the comparative safety between the two machines, could only have reference to the minor defect of having a too large space between the end of the table and the revolving head, as that is the only difference shown in the construction of the two machines. The evidence had no bearing on the principal defects, as to the tilting downwards of the table when pressure was applied and the using of the machine' without the device for holding the boards without using the hands. Nothing is shown as to the other machine in these respects and such were not defects of construction and intended use, but of negligence in permitting the machine to be out of repair.

Nor is it always improper to show that another method of construction or operation of an instrumentality in actual use is practical and avoids the dangers of the one in question as tending to show that the one in question is not reasonably safe. “A more logical as well as a more equitable rule would therefore seem to be this — that evidence tending to show that a safer instrumentality might have been used, has an appreciable bearing upon the question whether the one actually used was reasonably safe, and may or may not be conclusive, according to the other elements presented by the case.” [3 Labatt’s Master & Servant, sec. 932, p. 2515.] There are cases in this State upholding this doctrine. [Charlton v. Railroad, 200 Mo. 413, 443, 98 S. W. 529; Letanovsky v. Shoe Co., 157 Mo. App. 120, 126-7, 137 S. W. 321.] Whether such evidence is admissible in a particular case may depend on the facts and issues of such particular case, and where its sole purpose and effect is to set up as a standard of negligence that a safer instrumentality could have been furnished, the evidence should be rejected. [Conway v. Railroad, 24 Mo. App. 235; 3 Labatt’s Master & Servant, sec. 931, p. 2506.] We decline to reverse the case on this ground. Objections were made to other evidence which we have examined and found have a tendency to show knowledge of the master as to the defects complained of, and, while the answers are too broad and general, the questions, which alone were objected to, are, as the trial court ruled, not objectionable.

In the present case plaintiff’s sole injury, a severe' one to be sure, is that he lost the ends of the four fingers, of his left hand at or near the second joint, attended with the usual and necessary suffering and bodily impairment incident to such an injury. His wound healed in the usual time and manner. His injury and suffering were just such, and no more, as are usual and necessary in having his fingers suddenly cut off in the' manner mentioned. The usefulness of his left hand is greatly impaired of course, necessitating in all probability a change in occupation and permanent loss of earning power. He is a man in middle life and was earning $75 to $80 per month at the time of his injury. He promptly recognized that $10',000 was an excessive verdict and voluntarily reduced it to $7500. Under the rulings of the Supreme and other Appellate Courts of this .State, we think the amount of damages is yet too large. [See cases cited in Sanders v. Quercus Lumber Co., 187 Mo. App. 408, 173 S. W. 740, 741.] We have concluded that $6,000 is all that can be allowed in this case. If the plaintiff will within ten days remit $1500 of the amount awarded in the judgment of the trial court, a judgment will be entered here for $6,000 as of the date of the original judgment with interest from that date. Otherwise the ease will be reversed and remanded.

Farrington^ J., concurs. Robertson, P. J., concurs except as to the reduction of the amount of the verdict.

Case Details

Case Name: Hosheit v. Lusk

Court Name: Missouri Court of Appeals

Date Published: Jun 17, 1915

Citation: 190 Mo. App. 431

Court Abbreviation: Mo. Ct. App.