166 Mo. App. 555 | Mo. Ct. App. | 1912
— This is a suit by the widow of Lindsay Jewell to recover damages for the death of her husband which she alleges was caused by negligence of defendant, his employer. At the first trial the jury in obedience to a peremptory instruction returned a verdict for defendant. Subsequently the court sustained a motion for a new trial on the ground that the evidence aided by admissions in the answer of defendant made a case to go to the jury. Defendant appealed but we affirmed the judgment granting a new trial. [143 Mo. App. 200.]
There are six specifications of negligence in the petition, but two of them were withdrawn from the jury and may be dismissed from our consideration. The remaining four relate to the maintenance by defendant of an open knife-blade switch in the motor house adjacent to the corning mill. Plaintiff charges that defendant was negligent; first, in not having an oil switch instead of a knife-blade switch; second, in not providing an automatic current breaker operated by a push button at a safe distance from the switch; third, in not having a long-handled instead of a short-handled switch, and, fourth, in not having the switch enclosed in a dust proof cabinet. It is the contention of plaintiff that while Jewell, in the performance of the duties of his employment, was operating the switch either to turn on or shut off- the current, an arc was created and a spark emitted from the switch that fell on his powder begrimed clothing or person and set him afire.
Defendant admits the cause of the injury was the ignition of Jewell’s clothing while he was operating the switch and in the original answer defendant al
The evidence bearing on the issue of proximate ■cause adduced by plaintiff thus may be stated: A witness introduced by plaintiff who was defendant’s chief engineer at the times of the construction of the plant and of the injury, testified that he urged defendant’s president, and superintendent to put in an oil switch on the ground that an open switch would be unsafe, but his suggestion was overruled. After its installation the switch in being opened or closed sometimes produced an arc. and emitted sparks and there is
“Modern decisions,” says Judge Wagner in Brownell v. Railroad, 47 Mo. l. c. 244, “clearly establish the doctrine that the rule permitting dying declarations to be given in evidence aplies exclusively to criminal prosecutions for felonious homicides and has no reference to civil cases.” The important question for solution is whether the declaration should be regarded as a verbál act of the dying man which formed a part of the whole res gestae or as a mere-narrative of the past event.
As is said in Wigmore on Evidence (Yol. Ill, section 1745) “there are few problems in the law of evidence more unsolved than what things are to be embraced in those occurrences that are designated in the law as the res gestaeThe confusion is not due to-any lack of soundness or cleárness in the rules themselves but in the variant and antagonistic applications of them to be found in the reported cases. Prom the time the courts broke away from the illogical and often unjust doctrine that declarations of an injured person relating to the cause of his injury could not be treated as verbal acts, as a part of the res gestae where they were not contemporaneous with the main event, and substituted the more enlightened and sensible rules enlarging the scope of the res gestae, the decisions of the courts have been marked by a uniform acknowledgment of the soundness of the new rules-but by variations in their applications ranging from the low tide of the old doctrine to the high tide of the extreme limit of the new.
In the opinion of the writer the clearest and most concise- enunciation of the modem doctrine to be found in the decisions of the courts of this state is in the following excerpt from the opinion in Leahey
It will be observed that Judge Black divides into two classes the instances where declarations uttered after the occurrence of the main event should be considered as verbal acts and not as narratives of past events, viz: First, where the declaration is made at a time and under circumstances which indisputably proclaim its spontaneity, i. e., its complete subservience to the influence of the main event, and, second, where though subsequent to the main event, it clearly was a part of the single transaction of which that event was a part. In other words, if the declaration be made before the close of the natural and inevitable action of the injury, it should be regarded as a part of the res gestae, — of the whole transaction — though the main event has passed into the secondary and consequential stage of its action. Applying these rules Judge Black held that the declarations of the injured boy, made when first he was picked up and was surrounded by persons who witnessed the calamity, were admissible as verbal acts' but that declarations
But there are essential and vital differences between the facts of the present case and those to which we have just referred. Here the declaration was made under circumstances which preclude the idea of any lack of spontaneity or of the intervention of any other influence than that of the injury and further the necessary resultant action of the calamity was in progress and it cannot be said that'the transaction, as a whole, had passed into history. Jewell was fleeing from the scene of his deathstroke to a place of refuge. In awful agony and in the consciousness of impending death he declared the cause of his injury in the presence of witnesses who had heard and seen the explosion and had heard his spontaneous outcries. These facts in their legal significance closely resemble those considered by the Supreme Court in State v. Martin, 124 Mo. 514, and we say, as did Judge Gantt in that case that “no sensible man would reject such evidence in his own affairs,” and add that no rule of evidence
Counsel for defendant argue with much earnestness that the evidence of plaintiff fails to sustain the accusation of negligence in providing an unguarded switch. We have little to add to what we said on this subject in our former opinion. In the performance of the duty it owed its servant to exercise reasonable care to provide him a reasonably safe place in which to work and reasonably safe tools with which to work, the law required defendant'to take into consideration the natural necessities and dangers of the service and to make a reasonable endeavor to install and maintain a switch that would be reasonably safe under the conditions that defendant knew or should have known would obtain in its operation. What would-be reasonable care in one situation would be gross negligence in another. Had the switch been installed in the corning mill where, at times, the air was filled with powder dust, no one would have the hardihood to contend that to leave it unprotected by any spark quenching or arresting appliance would not have been the grossest
The evidence presents the issue of defendant’s negligence as one of fact for the jury to determine.
Passing to the issue of contributory negligence we are satisfied with the treatment we gave this subject in our former opinion. Defendant contends that the evidence shows that the arc which produced the spark was caused by Jewell’s negligent disobedience of orders respecting the use of the rheostat, but we find room in the evidence for a reasonable inference that the condition that appliance was found in after the explosion which wrecked the motor house could have been caused by the explosion and we would not be justified in holding as a matter of law that it was caused by Jewell’s negligence. The issue of contributory negligence was properly sent to the jury. We approve the action of the learned trial judge in refusing to direct a verdict for defendant.
Complaint is made of the ruling of the court in allowing Freeman Bailey to give expert testimony relating to electrical switches and their installation in places where high explosives are kept. “An expert is defined to be one who is'skilled in any particular act, trade or profession, being possessed of peculiar knowledge concerning the same. Strictly speaking an ‘expert’ in any science, art or trade is one who by practice or observation has become experienced therein.” [Turner v. Haar, 114 Mo. 335.]
The witness was the chief engineer of defendant when the plant was constructed and thereafter until after the injury in question and, as such, was in prac
Further defendant complains of the refusal of the court to give the following instruction: “The court instructs the jury that if they believe from the evidence that when defendant constructed its powder plant it made a contract with a reputable corporation of good standing engaged in the business of furnishing and installing electrical appliances in plants operated by electric power and that said contract required that the said appliances should be first class and suitable for the purposes for which they were furnished and that the switch in the motor house of defendant’s corning mill was furnished and installed by such contractor under said contract and that defendant’s officers in charge of said plant had no knowledge that said switch was not reasonably safe for the. •purpose for which it was furnished, then the defendant exercised ordinary care to provide a reasonably safe switch in said motor house and your verdict must be in favor of the defendant.”
This instruction is based on evidence introduced by defendant to the effect that the electrical machinery and appliances at the plant were installed by a reputable manufacturer to whom defendant gave carte Manche to put in the most suitable appliances.
The rule is that where an appliance furnished by the master is not complicated or dangerous and is purchased from a reputable and standard maker, the' master is not required to make a minute inspection
We have examined other points urged for a reversal of the judgment and find they are not well taken. The cause was fairly tried, the judgment is not excessive and accordingly it is affirmed.