134 Mo. App. 485 | Mo. Ct. App. | 1908
Plaintiff fell down a hay chute in the loft of a barn belonging to the defendant company, fracturing his left knee cap — -an injury which proved to be serious and permanent. Plaintiff was employed by defendant in its lumber yard for various duties. He swore he was subject to the orders of the officials of the company or its foreman, Kelting, and did nearly all kinds of work. There was a two-story barn on the lumber yard, along which an exterior platform ran on a level with the floor of the second story. One day Kelting was on the platform endeavoring to thrust a screen dour through a door in the side of the barn which opened into the loft. He experienced difficulty in getting the screen through the opening and plaintiff, who was watching in the yard nearby, asked if he (plaintiff) should assist. According to plaintiff’s testimony Kelt-ing answered “yes”; and thereupon plaintiff went through the first story of the barn, climbed a ladder to the second story and attempted to walk across the floor to the loft to reach the corner where Kelting was at work with the screen door, in order to assist him. When plaintiff reached the loft he found it dimly lighted through a dusty, cobwebby window. He said the light
1. It is said the petition fails to state a cause of action, because it does not aver plaintiff was executing
2. Error is assigned because of the refusal of the court to direct a verdict for defendant. The assignment is supported by several arguments, each of which calls on us to determine issues of fact. The evidence was uniform in regard to the condition of the loft, except as to the quantity of light which flowed into it. Appellant says the custom is to leave open hay chutes in lofts of barns, and, therefore, plaintiff was bound to be on the watch for such an opening in the floor. Plaintiff’s testimony on this matter was the other way; for he said he never had seen these openings in barn floors, but all hay chutes he had seen like the one in question, were made with covers. The court cannot say on judicial notice, there was so general a custom to leave hay chutes open as would bind plaintiff to look out for the one he fell into, or as would excuse defendant from covering it,
3. The main instruction given for plaintiff, is challenged on the ground that it permitted the jury to find for him because of negligence not alleged, i. e. an order by the foreman for him to go into the hay loft. Said instruction, as well as others requested by defendant, required a finding that plaintiff entered the loft pursuant to a request from the foreman; but this was for the purpose of advising the jury plaintiff could not recover if he went there of his own motion and without a request; not for the purpose of authorizing a verdict merely because he was directed by the foreman to go there and without reference to whether one or more of the acts of negligence alleged had been established. The instruction required the jury not only to find a request, but to find plaintiff, while obeying the request, and exercising ordinary care to avoid injury to himself,
This appeal presents the ever occnrrent error of an instruction on the measure of damages broader than the averments of the petition or the evidence warrant. The damages alleged were these:
That plaintiff “fell through said hole and was precipitated to the floor below, thereby sustaining injuries to It's knee, injuring and breaking the cap thereof and injuring the joint, whereby plaintiff was bruised and wounded and has ever since been prevented from attending to his business of a laborer and has been put to great expense for medical and surgical attendance, for hospital service and for medicines; that by reason of said injuries plaintiff will be for a long time, if not permanently, deprived of the complete use of his knee and limb, and has suffered and will continue to suffer great pain and' anguish of mind and body; all to his damage in the sum of ten thousand dollars ($10,000) for which sum, together with his costs, he prays judgment against defendant.”
An instruction told the jury if the verdict was for plaintiff, to assess his damages at such sum as would fairly compensate him for injuries to his person which
It is insisted the verdict is so reasonable in amount the judgment should be affirmed notwithstanding the fault in the charge on the measure of damages. We have reflected a good deal over this proposition without being able to accede to it. In our opinion the question of plaintiff’s damages ought to be resubmitted to a jury under proper advice.
The judgment is reversed and the cause remanded.