215 Mo. 688 | Mo. | 1909
This action was brought by the plaintiff against the defendant to recover damages on account of personal injuries sustained by him on the 4th of February, 1903, at or near the northeast corner of Broadway and Spruce streets in the city of St. Louis, while plaintiff was in the service o-f the defendant as a laboren engaged in the work of rolling a heavy cable reel upon a wagon for the defendant. The injury necessitated the amputation of the right leg of the plaintiff above the knee.
The answer was a general denial and a general plea of contributory negligence. The reply was a general denial.
The testimony tended to show that the defendant at the time of the alleged injury to plaintiff was engaged in furnishing gas and electricity to the people of St. Louis. One of the means of doing this was by using cable wires, and in carrying on its business it became and was necessary for it from time to time to haul reels on which cable wires were rolled from place to place. These reels were hauled upon wagons provided by defendant for that purpose. On the day before the injury a wagon usually used by the defendant for said purpose had broken down and the defendant had procured another wagon, which was constructed and adapted to hauling heavy stone. It appears that the bed or floor of this wagon extended out several inches beyond or outside of the wheels, some four to six inches beyond the tires. It was upon this wagon
The jury returned a verdict of five thousand dollars, and judgment for that sum was rendered.
II. The conflict is whether there was sufficient evidence to support the plaintiff ’s contention that the defendant negligently failed to furnish plaintiff with reasonably safe appliances and a reasonably safe place in which to do his work in assisting to roll the reel upon the wagon. The defendant insists that there was no evidence whatever of negligence on its part and that the mere fact that the wagon tipped when the reel first rested upon its edge, and that the skids broke down and gave way, thereby precipitating the reel upon the plaintiff and breaking his leg, did not make a prima-facie case against the defendant. Whereas the plaintiff insists that, as it was the defendant’s duty as a master to use ordinary care in supplying appliances reasonably safe and suitable for the plaintiff to work with in the discharge of the duties of his service and also to use such care in commanding and controlling the work, the failure of the foreman, Gallagher, who was the vice-principal of the defendant in the matter of providing the appliances for this work, to have the wagon blocked so as to keep- it from tipping, and in neglecting to place proper skids and sup'ports under the skids to sustain the weight of the reel, was negligence. The question now is whether the circuit court should have sustained the demurrer to the evidence. In reaching the conclusion upon this proposition, it is clear, we think, that the foreman, Gallagher,
But it is the contention of the defendant that the wagon might have been loaded a thousand times without tilting. The mere fact that it did tilt did not create any presumption that such tilting should have been provided against by blocking the wagon itself, and that in order for the plaintiff to recover, it devolved upon him to show first that if it had been blocked, the ac
In our opinion then the court did not err in overruling the demurrer to the evidence and submitting the case to the jury under proper instructions.
III. What we have said in the foregoing paragraph applies as well to the objection to the plaintiff’s first instruction, which is hypothecated upon the facts, which were submitted to the jury, to say by their verdict whether the defendant was guilty of neg
IV. Among other instructions the court gave the following as to the measure of damages, and known in the record as number 16: “If the jury find for the plaintiff they should assess his damages at such a sum as they believe from the evidence will be a fair pecuniary compensation to him, first, for any pain of body or mind which the jury believe from the evidence he has suffered by reason of said injuries and directly caused thereby; second, for any loss of the earnings of his labor which the jury believe from the evidence the plaintiff has sustained or will sustain by reason of said injuries and directly caused thereby; third, for any expenses necessarily incurred for medical treatment or nursing, which the jury believe from the evidence the plaintiff incurred by reason of such injuries and directly caused thereby. ’ ’ Counsel for the defendant challenge this instruction on the ground that it allowed plaintiff to recover for medical services, when they insist that there was no evidence that he paid anything for the same, or was liable to pay for the same. This contention grows out of the difference of view as to what the evidence shows in regard to the doctor’s bill for five visits after the plaintiff had left the hospital. When the plaintiff was on the stand he testified that his leg was amputated by Dr. Amyx with the assistance of Dr. Coryell and Dr. McCandless. In answer to a question by counsel for the defendant, “You did not have to pay Dr. McCandless, Dr. Amyx and Dr. Coryell for that amputation? Ans. No, sir. Q. Nothing for the hospital services or professional nursing? Ans. No, sir. Q. In your deposition taken shortly after this accident, you stated that your doctor bills were paid by the company ? Ans. I did not pay them. ’ ’ He was asked also by his own attorney, “Now who has treated you, if anybody, since you have left the hos
Y. It was also urged as error that the circuit court refused to give three instructions designated as D, E and F, which embodied the principle of non-liability of the defendant for the negligence of the fellow-servants of the plaintiff in failing to prop the wagon and in failing to hold on to the reel while pushing it up on the skid.
In so far as this instruction submitted to the jury the negligence of plaintiff’s fellow-servants in letting go their hold on the reel when the tilting of the wagon threw it back on the skid, we think there is absolutely no evidence to support it. Like plaintiff, they were obeying the orders of the foreman in pushing the reel up' the skid on to the wagon bed or apron, and when
As to the other ground of negligence, to-wit, their failure to prop the wagon to prevent its tilting the reel, it wholly ignores the responsibility for the negligence of the foreman in failing to have the wagon propped, and when he was on the ground directing what propping or failure to prop should be done, as the evidence absolutely showed.
If it be-contended that the statements of the absent witnesses, Daly and Butler, support defendant’s position, it is to be observed that Daly merely says, “In rolling reels onto wagons and taking them off, we men generally adopted our own system. It was left to us to determine first how the. skids were to be placed, and what props were to be used. It was not our foreman’s duty to personally [attend] to these duties.” "Whatever might have been the general custom was beside the point at issue in this case. Here the uncontradicted testimony was that the foreman Mr. Gallagher did take charge of this particular work, as he had the right to do, and that he did not leave it to the men to determine just how the skids were to be placed and what props were to be used. He determined that there was no necessity for propping after having been advised and warned by the subordinate foreman, Shevlin, that it was necessary. The fact that the men did not suggest the necessity of propping or what they thought about it, was immaterial. Nor was the plaintiff bound by what they thought or did not think. He was not present until the skid was adjusted to the wagon. He found the foreman in charge and directing the loading of the reel, and what was said by Judge Sherwood in Sullivan v. Railroad, 107 Mo. l. c. 78, is peculiarly applicable here, to-wit, “The fact
VI. As to the final contention, that it was error to have permitted plaintiff to show that the wagon .ordinarily used by defendant for hauling reels had broken down on the day prior to plaintiff’s injuries, and for that reason this wagon had been procured, it need only be said that, inasmuch as the court refused to submit to the jury that the wagon that was used was insufficient, no possible harm could have resulted to defendant by that evidence.