Smith v. Kansas City

• Decision Date: 01 April 1907
• Citation: 101 S.W. 1118,125 Mo. App. 150
• Parties: SMITH v. KANSAS CITY.
• Court: Missouri Court of Appeals

101 S.W. 1118

125 Mo. A. 150

SMITH v. KANSAS CITY.

Kansas City Court of Appeals. Missouri.

April 1, 1907.

Rehearing Denied May 6, 1907.

1. TRIAL — INSTRUCTIONS AS TO DAMAGES — ERROR CURED BY REMITTITUR.

An instruction erroneous because failing to limit the jury in computing damages for medical attendance and medicine for which plaintiff had been liable, to the amount claimed in the petition, was cured by a remittitur of a sum which the evidence showed was equal to the entire liability of plaintiff for medicine and medical attendance.

2. MASTER AND SERVANT — INJURIES TO SERVANT — ACTIONS — INSTRUCTIONS.

In an action for injuries to a laborer by the caving in of the wall of a trench, an instruction "that if you believe from the evidence that the foreman in charge of the work knew, or by the exercise of ordinary care could have known, that there was danger of the wall of the trench, in which the plaintiff was working, caving in, and that he failed to provide against such caving in with the care and caution that a reasonably prudent and cautious person would have exercised under the same or similar circumstances, consistent with the continuation of the work that was being done, then he was guilty of negligence as that term is defined in another instruction," is not objectionable as being a commentary on the evidence, does not enlarge the issue, and is a proper definition of negligence.

3. SAME — ASSUMPTION OF RISK — DANGER INCIDENT TO NATURE OF WORK.

Where a trench was dug through cinders, sand, and other material, so that the walls were more likely to cave in and injure the servant than in ordinary earth, the servant assumed all the risk of injury incident to its liability to cave in that could not be avoided by the exercise of ordinary precaution upon the part of the master.

4. SAME — LATENT DEFECTS.

The fact that a person injured by the caving in of a trench was of ordinary intelligence, and knew the danger, would not preclude him from recovering, if the danger was not imminent, and of such character that a person of ordinary care would not have undertaken the work, or that he might have reasonably supposed that he could do the work by the use of care and caution.

5. SAME — CONTRIBUTORY NEGLIGENCE OF SERVANT.

A person injured by the caving in of a trench dug through cinders, sand, and other loose material is not guilty of contributory negligence because he picks bricks out of the wall to prevent them from falling upon the workmen.

6. SAME — RELIANCE ON CARE OF MASTER.

Where a servant's work is done in the presence of and under the immediate direction of the master's foreman, the servant is not bound to search for danger, but may rely upon the superior knowledge of the foreman.

7. EVIDENCE — EXPERT EVIDENCE.

In an action for injuries caused by the caving in of a trench, it is competent to state to expert witnesses the nature and extent of the injuries, and to ask them whether or not in their opinion the present condition of the injured person was caused by the injuries, or by some other cause.

8. APPEAL — REVIEW — HARMLESS ERROR — EXPERT TESTIMONY.

Although evidence of expert witnesses should not have been admitted to the effect that a trench through loose earth five to nine feet deep should be braced, it being a matter of common knowledge, still it was harmless error, where the jury properly found that it should have been braced.

Appeal from Circuit Court, Jackson County; Sanford B. Ladd, Special Judge.

Action by Thomas H. Smith against Kansas City. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Edwin C. Meservey and W. H. H. Piatt, for appellant. Dwight P. Dilworth and Elijah Robinson, for respondent.

BROADDUS, P. J.

This is a suit for injuries plaintiff received, alleged to have been the result of the defendant's negligence. The petition alleges that on the 24th day of November, 1903, plaintiff was the servant and employé of defendant, and as such was engaged in digging a trench and laying a water pipe at Turkey creek pumping station; that the work was being done under the direction and control of William Boyle, defendant's foreman; that plaintiff was injured by the caving or falling in of the bank of the trench; that defendant's said agent in charge of said work "negligently and carelessly failed and neglected to brace, shore up, and protect the bank or walls of said trench wherein plaintiff was working, as aforesaid, so as to make said trench reasonably safe to work in, as it was the duty of defendant and its said representative to do"; and that by reason thereof plaintiff was seriously injured. The answer was a general denial, and a plea of contributory negligence, and that plaintiff assumed the risk. The evidence showed that plaintiff was a man 55 years of age, and in good health at the time of his injury, at which time and prior thereto he was in the employ of defendant as a common laborer, principally engaged in excavating trenches and laying water mains; that he was injured, while putting in an exhaust pipe from the boiler room at said station, by the caving in of one of the banks of the trench, which was from five to nine feet deep; that the trench was excavated through material composed of cinders, soil, sand, and some bricks; that at the time in question other employés of defendant were engaged in rolling in a large water pipe and shoveling back the excavated material; and that plaintiff while in the trench and in a stooping position, guiding a piece of water pipe, which was being carried on ropes by four or five men on top of the bank, was injured by a portion of the wall of the trench falling upon his back and legs. Attention will be called to other evidence hereafter. The plaintiff recovered judgment in the sum of $5,000, but entered a remittitur of $500. Defendant appealed.

The defendant alleges that many errors occurred during the trial, which we will notice in the order they are assigned in its brief. First. The giving of instruction No. 5 for plaintiff, authorizing a recovery for obligations incurred for "medical treatment and attention" in excess of the amount claimed and for expenditures not alleged in the petition. Said instruction authorizes a recovery for medical attention and treatment for which the plaintiff had become liable. The allegation of the petition is that plaintiff had become liable for medicine and medical attendance in the sum of $125. The error consists in the failure of the instruction to limit the jury to the amount of recovery for the matters mentioned to the sum of $125. Smoot v. Kansas City, 194 Mo. 513, 92 S. W. 363. But, inasmuch as plaintiff has entered a remittitur of $500, the judgment ought not to be reversed for that cause, as the evidence very clearly showed that plaintiff's entire liability for medicine and medical attendance did not exceed that sum. In such cases, a remittitur cures the error. Smoot v. Kansas City, supra.

Plaintiff's instruction No. 1 is criticised for the...