Haake v. G. H. Dulle Milling Co.

Decision Date31 December 1912
Citation153 S.W. 74,168 Mo.App. 177
PartiesG. H. HAAKE, Respondent, v. G. H. DULLE MILLING COMPANY, Appellant
CourtKansas Court of Appeals

Appeal from Cole Circuit Court.--Hon. John M. Williams, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Watts Gentry & Lee for appellant.

W. C Irwin and D. F. Calfee for respondent.

OPINION

JOHNSON, J.

This is a personal injury suit. Plaintiff had been employed thirty-five years as a laborer in a mill operated by defendant at Jefferson City and was injured when engaged in oiling machinery, a task he was required to perform while the machinery was running. He had to ascend a ladder and extend his hand and arm between a moving belt and pulley wheel in order to oil one of the bearings, the oil hole of which could not be seen from his position (which was the only position he could take) and could be found and filled with oil only by use of the tactile sense. The belt had been spliced and at one of such places had become worn and frayed. While oiling this bearing plaintiff's arm necessarily was in close proximity to the belt which was moving rapidly and the roughened and frayed edges of the defective splice caught his sleeve and he was jerked over the pulley wheel and severely injured. His evidence tends to show that he was performing his task in the usual manner and was exercising due care. The specifications of negligence in the petition which find support in the evidence of plaintiff are, first, the failure of defendant to provide a suitable oil can, i. e., a can with a long spout; second, the failure to equip the bearing with an oil-conducting tube that would permit the introduction of the oil without the insertion of the servant's arm in a dangerous place; third, operating a belt which had a defective and dangerous splice and, fourth, the omission to enclose the moving parts of the machinery with a suitable guard.

The answer contains a general denial and pleas of assumed risk and contributory negligence. A trial of the issues resulted in a verdict and judgment for plaintiff in the sum of six thousand dollars and the cause is before us on the appeal of defendant.

The errors assigned by counsel for defendant relate to the rulings of the court in giving instructions numbered 1, 2 and 6, asked by plaintiff and to the alleged misconduct of counsel for plaintiff in the examination of witnesses and in the closing argument to the jury.

The objection to instructions numbered 1 and 2 is that they direct a verdict for plaintiff without requiring the jury to find that the acts of defendant included in their hypothesis were negligently performed or rendered unsafe and dangerous the place where plaintiff was required to work. We rule this point against defendant. The facts the instructions required the jury to find were such as to leave no room for a reasonable difference of opinion respecting the conclusion to be drawn from them. They were wholly incompatible with the inference of reasonable care on the part of defendant, and justified the court in telling the jury that, in effect, such facts would be conclusive proof of defendant's negligence. There was no need to require the jury to declare an act negligent which the law itself would pronounce negligent. [Tarwater v. Railroad, 42 Mo. 193; Yarnall v. St. Louis Railway Co., 75 Mo. 575; Farris v. Railway, 80 Mo. 325; Keown v. Railway, 141 Mo. 86, 41 S.W. 926; Kelley v. Parker-Washington Co., 107 Mo.App. 490, 81 S.W. 631; Gessley v. Railway, 26 Mo.App. 156; Zimmerman v. Railway, 71 Mo. 476.]

The sixth instruction given at the request of plaintiff related to the measure of damages and directed the jury to allow him damages for "his necessary expenses for medical attention in endeavoring to be cured" without placing any limit on such allowance or confining it to expenses incurred for medical attention received before...

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24 cases
  • Semper v. The American Press
    • United States
    • Missouri Court of Appeals
    • 2 de junho de 1925
    ...Finley v. United Railways, 238 Mo. 6; Tyon v. Wabash Ry. Co., 207 Mo.App. 322; Walters v. United Railways, 165 Mo.App. 628; Haake v. Milling Co., 168 Mo.App. 177; Radtke v. Basket & Box Co., 229 Mo. 1, 18, 19, Tinkle v. Railroad, 212 Mo. 445. (5) The verdict and judgment are excessive. Mitc......
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    • United States
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    ...v. Ry., 200 Ill.App. 487; O'Hara v. Co. (Mo. App.), 197 S.W. 163; Monroe v. Ry., 249 S.W. 644; Stroud v. Doe, 272 S.W. 1080; Haake v. Co., 168 Mo.App. 177; Smith Ry., 31 S.W.2d l.c. 107; Villinger v. Nighthawk, 104 S.W.2d l.c. 742; Norris v. St. Louis Ry., 239 Mo. 695; Foster v. Kurn, 133 S......
  • Walsh v. Terminal R. Ass'n of St. Louis
    • United States
    • Missouri Supreme Court
    • 9 de outubro de 1944
    ... ... v. Sheffield Car & Equipment Co., 24 S.W.2d 166; ... Beck v. Railroad, 129 Mo.App. 7; Haake v. G.H ... Dulle Milling Co., 168 Mo.App. 177; Henry v. I.C.R ... Co., 282 S.W. 423; Mason ... ...
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    • Missouri Supreme Court
    • 5 de setembro de 1944
    ...improper. 64 C.J., p. 280, sec. 298 and Missouri eases cited in footnote; Torreyson v. United Rys. Co., 144 Mo.App. 626; Haake v. G.H. Dulle Milling Co., 168 Mo.App. 177. (12) Arguments and comments by counsel calculated to the passions and prejudices of a jury by presenting to them conside......
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