97 Mo. App. 411 | Mo. Ct. App. | 1902
— It is contended by appellant that its instruction in the nature of a demurrer to the evidence should have been given. The court so instructed, and it is conceded that appellant’s liability is governed by the laws of Iowa, the State where the accident occurred. Respondent pleaded specially section 2071- of' the Iowa Code. That section reads as follows: “Every corporation operating a railroad, shall be liable for all' damages sustained by any person, including employees-of such corporation in consequence of the neglect of the-agents,, or by any mismanagement of the engineers, or other employees thereof; and in consequence of the willful wrongs, whether of commission or omission of such agents, engineers or other employees, when such wrongs are in any manner connected with the use and operation of any such railway on or about which they shall be employed, and no contract which restricts such liability shall be legal or binding. ’ ’
The evidence shows that the respondent was not engaged in the operation of a railway, but in the reconstruction of an old and theretofore abandoned railway track, preparatory to a resumption -of its use as a rail
. The allegation in the petition is that the appellant was negligent in employing inexperienced men to load and push the caí. The evidence is that Tilger was the boss or foreman, under whom the resp.ondent and the other employees who loaded the car worked, and that the car was loaded by his direction and that he was nearby when it was loaded, but there is not a ray of testimony that he was an inexperienced or incompetent man to perform the duty assigned him by appellant.'
II. It is alleged in the petition that the appellant built and caused to be built, the car at its own shops and furnished it to respondent and other employees to be used in the reconstruction of the railway. Appellant contends that the respondent should be held to strict proof of this allegation that it built the car.
The instructions ásked by both parties and given by the court, show that the case was submitted to the jury on the theory that it was the duty of the appellant to furnish the respondent with a reasonably safe push car. Por the respondent the jury were instructed that it was the appellant’s duty to select the proper mater
Having tried the case on the theory that appellant was liable if it negligently furnished respondent with a defective car, the appellant will not be permitted on appeal to insist that the respondent should have been held to strict proof of the allegation that appellant built the car at its own shops, the law being well settled that on appeal parties litigant may be confined to the cause of action they adopted on the trial. Hill v. Meyer Bros. Drug Co., 140 Mo. 433; Stewart v. Outhwaite, 141 Mo. 562; Pope v. Ramsey, 78 Mo. App. (K. C.) 157.
John Mitchell testified that he had been in appellant’s employ for thirteen years and had charge of its car shops at Moberly, Missouri, and built appellant’s push cars, and “supposed he made the car in question,” but could not say positively, as he was not at Bussey where the accident occurred; that cars built at appellant’s shops were furnished for that division. "While this is not direct positive evidence that the car was built by appellant, it was evidence tending to prove that fact, and as appellant did not, as was in its power to do, offer any evidence to show where the car was actually built, or any evidence to show that the car was not built at its shops, it was sufficient to warrant the court in submitting that issue to the jury and to warrant the jury in finding as a fact that defendant did build the car.
III. The appellant contends that the court erred in authorizing a recovery, even though the car was overloaded. The instructions for respondent told the jury in effect that if the car was made of brash and brittle wood and was not reasonably safe for the purposes for which it was being used when loaded with an ordinary load, and for this cause broke down, then the fact that it was overloaded did not absolve appellant from lia
IV. Appellant contends that the damages are excessive. In support of this contention, our attention is called by its abstract and statement to the fact that on
The former trial is not before ns for review. The verdict on that trial furnished no precedent fop a verdict on-the second trial. The evidence of the extent and permanence of the injury may have been much stronger on the last than on the first trial. The time intervening between the two trials, in the course of nature, develop the extent, nature and probable duration of the injury, and furnish the expert witnesses better information and enable them to testify more fully and satisfactorily of the nature, extent and probable duration of the injury.
The trial judge refused to set aside the'Ver diet on account of excessive damages; it therefore had his approval. In such circumstances we are not authorized to interfere unless .it is manifest that the jury were actuated by passion or prejudice. The respondent was nineteen years old when injured; he was a' laborer, raised on a farm; after the injury he testified that he was unable to plow more than a few hours at a time; he had been lame ever since the injury and was lame at the trial. The injured ankle was énlarged. The expert evidence tended to prove that the sprain was a severe one. One of the physicians stated that there was evidence of injury to the bone. One other said the injury might, and another that he thought it would, be permanent. All agreed that he could not walk in a natural manner, ■ and the evidence was. that the ankle joint would for a long time continue weak and easy to be hurt again, and was more liable to disease than a sound ankle. In view of this evidence, we are not prepared to say that the verdict is not .the honest expression of the jury of what is a fair-and just compensation to respondent for the injury, and affirm the judgment.