101 S.W. 1118 (Mo.App. 1907), Smith v. Kansas City

Citation:101 S.W. 1118, 125 Mo.App. 150
Opinion Judge:BROADDUS, P. J.
Party Name:THOMAS H. SMITH, Respondent, v. KANSAS CITY, Appellant
Attorney:Edwin C. Meservey, City Counselor, and W. H. H. Piatt, Associate City Counselor, for appellant. Dwight P. Dilworth and Elijah Robinson, for respondent, filed argument.
Case Date:April 01, 1907
Court:Court of Appeals of Missouri
 
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Page 1118

101 S.W. 1118 (Mo.App. 1907)

125 Mo.App. 150

THOMAS H. SMITH, Respondent,

v.

KANSAS CITY, Appellant

Court of Appeals of Missouri, Kansas City

April 1, 1907

Appeal from Jackson Circuit Court.--Hon. Sanford B. Ladd, Special Judge.

REVERSED AND REMANDED.

Edwin C. Meservey, City Counselor, and W. H. H. Piatt, Associate City Counselor, for appellant.

(1) This case must be reversed for error in giving respondent's instruction numbered 5, authorizing the recovery of an amount for obligations incurred for "medical treatment and attention" in excess of the amount claimed and for expenditures therefor not alleged to have been made. (2) This case must be reversed for the error in giving plaintiff's instruction numbered 1, which comments on the evidence by directing the attention of the jury to negligence of a party not joined in the suit and not an issue in this case, and because the instruction is an incorrect and defective statement of the facts necessary to constitute negligence. It assumes the truth of a controverted fact and is broader than the petition. (3) The plaintiff assumed the risk and hazard incident to the manner of doing the work. Under his own evidence in this case he was guilty of contributory negligence. (4) The court erred in permitting plaintiff, over the objection of defendant, to introduce expert and opinion evidence on a matter of common knowledge; in permitting plaintiff's medical experts to invade the province of the jury; and in permitting plaintiff to enlarge the issues made by the petition. (5) The verdict is excessive.

Dwight P. Dilworth and Elijah Robinson, for respondent, filed argument.

OPINION

[125 Mo.App. 152] 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 twenty-fourth day of November, 1903, plaintiff was the servant and employee 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 [125 Mo.App. 153] 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 fifty-five 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...

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