27 S.W. 466 (Mo. 1894), Boettger v. Scherpe & Koken Architectural Iron Company

Citation:27 S.W. 466, 124 Mo. 87
Opinion Judge:Brace, J.
Party Name:Boettger v. Scherpe & Koken Architectural Iron Company, Appellant
Attorney:Pollard & Werner for appellant. Carlisle & Ottofy for respondent.
Case Date:July 09, 1894
Court:Supreme Court of Missouri

Page 466

27 S.W. 466 (Mo. 1894)

124 Mo. 87



Scherpe & Koken Architectural Iron Company, Appellant

Supreme Court of Missouri, First Division

July 9, 1894

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant, Judge.

Reversed and remanded.

Pollard & Werner for appellant.

(1) There is no evidence to support the verdict. This court will look into the record to ascertain this, and, if it so find, will reverse the judgment. Schooling v. Railroad, 75 Mo. 518; Hacker v. Brown, 81 Mo. 68. (2) It was error of the trial court to permit expert testimony to be introduced to show that the effect of a knot in a piece of lumber was to weaken it. Rogers on Expert Testimony, sec. 6, p. 19; Gutridge v. Railroad, 94 Mo. 468; Bohn v. Railroad, 106 Mo. 429; Flynn v. Bridge Co., 42 Mo.App. 529; Underwood v. Waldron, 33 Mich. 232; Baldwin v. Railroad, 68 Iowa 37; White v. Ballou, 8 Allen, 408; Ferguson v. Hubbell, 97 N.Y. 507. (3) The instructions of the court submitting the questions as to whether the work upon which deceased was engaged, and as to his competency to perform the work, were erroneous as authorizing a recovery on a case not made by the pleadings. It is error to submit to a jury an issue of fact concerning which no allegation is made in the pleading. Melvin v. Railroad, 89 Mo. 106. (4) Defendant was entitled to the explicit instructions asked, that the question of the competency of the deceased to perform the duty of selecting the lumber for the construction of the scaffold in question, was not one of the issues in the case. (5) Defendant was entitled to a correct instruction upon the question of the capacity of the deceased, so long as the trial court had placed the question in issue by its instructions. (6) The only instruction given to the jury on the measure of damages was erroneous in not furnishing the jury with a sufficiently definite rule for their guidance, indicating none of the elements proper for consideration, and excluding none which were improper. It was a "roving commission." McGowan v. Steel Co., 109 Mo. 519; Goss v. Railroad, 50 Mo.App. 614; Schaub v. Railroad, 106 Mo. 174; Carpenter v. Cotting-ham, 53 Mo.App. 393-404.

Carlisle & Ottofy for respondent.

(1) The defendant, having introduced evidence on its own behalf, after its demurrer at the close of plaintiff's case was overruled, thereby waived its demurrer. Bowen v. Railroad, 95 Mo. 275; Taylor v. Penquitte, 35 Mo.App. 401; Guenther v. Railroad, 95 Mo. 286; Eswin v. Railroad, 96 Mo. 294; McPherson v. Railroad, 97 Mo. 255; Hilz v. Railroad, 101 Mo. 36; Jennings v. Railroad, 112 Mo. 268. (2) Contributory negligence can be declared as a matter of law only where "no other conclusion could reasonably be drawn from the facts in evidence." Blanton v. Dold, 109 Mo. 77; O'Mellia v. Railroad, 115 Mo. 221, and cases cited. (3) The master is liable unless he furnished: First, suitable material for the staging; second, skillful workmen; and, third, left the construction of the scaffold to them and retained no supervision over it. If he fails to show these three requisites he is liable. Bowen v. Railroad, 95 Mo. 277; Ackerson v. Dennison, 117 Mass. 408; Kelly v. Norcross, 121 Mass. 508; Killea v. Faxon, 125 Mass. 485; Peschel v. Railroad, 62 Wis. 344; Jones v. Co., 43 Mo.App. 399. (a) "Latent defects in machinery or other appliances are not part of the ordinary risks of employment which even an adult or experienced employee assumes as incidents of his employment." Clowers v. Railroad, 21 Mo.App. 217, and cases cited; O'Donnell v. Baum, 38 Mo.App. 247, and cases cited. (b) And even though the defect is obvious, to exonerate the master, not only the defects, but the danger, must also be known to the servant, and this is for the jury. Wood on Master and Servant [2 Ed.], sec. 376; Sullivan v. Railroad, 107 Mo. 78, and cases cited; Waldhier v. Railroad, 87 Mo. 46; Huhn v. Railroad, 92 Mo. 446; Stoddard v. Railroad, 65 Mo. 520. (c) He is not bound to look for latent defects; that is the master's duty. Wood on Master and Servant [2 Ed.], sec. 376; Gutridge v. Railroad, 105 Mo. 526. (d) And, although an obvious defect, it is for the jury to say whether it could have been discovered by the exercise of ordinary care. Gutridge v. Railroad, 105 Mo. 529; Thorpe v. Railroad, 89 Mo. 663; Wood on Master and Servant [2 Ed.], sec. 359,. 739. (e) The servant does not assume any risks as to machinery or appliances, excepting when the defect is so patent as to attract his notice and warn him of danger, and the burden is on the master to prove this notice of danger. Wood on Master and Servant [2 Ed.], sec. 359, pp. 740, 741. (f) It is the master's duty to provide reasonably safe appliances to enable the servant to discharge his duties with safety. He had a right to presume that the master had discharged his duty in that behalf. Parsons v. Railroad, 94 Mo. 286; Bowen v. Railroad, 95 Mo. 268; Johnson v. Railroad, 96 Mo. 343; Soeder v. Railroad, 100 Mo. 673. (4) Where the question "is one upon which men of common information are not capable of forming a judgment," or "one which observation or experience has given an opportunity and means of knowledge which exist in reasons rather than in descriptive facts," it is a case for expert evidence. Benjamin v. Railroad, 50 Mo.App. 602; Riley v. Sparks, 52 Mo.App. 575; Johnson v. Railroad, 96 Mo. 348; Branson v. Turner, 77 Mo. 495; Fitts v. Railroad, 59 Wis. 331; Armstrong v. Railroad, 45 Minn. 87; Haywood v. Knapp, 23 Minn. 434; Commonwealth v. Choate, 105 Mass. 457. A civil engineer can testify as to the strength of construction and safety of a bridge. He can also express an opinion as to soundness of timbers. Rogers on Expert Testimony [2 Ed.], sec. 106, p. 251; Indianapolis v. Scott, 72 Ind. 196. (5) The instruction on the measure of damages, even though erroneous, was harmless error. In order to be an error it must be one against appellant and "materially affecting the merits of the action." 1 R. S. 1889, sec. 2303, and cases cited; McGowan v. Ore & Steel Co., 109 Mo. 519; Nelson v. Foster, 66 Mo. 384; Mitchell v. Bradstreet Co., 116 Mo. 244; Gorham v. Railroad, 113 Mo. 421; Henry v. Railroad, 113 Mo. 538; Hawes v. Stock Yards Co., 103 Mo. 67; Browning v. Railroad, 24 S.W. 735. (6) An appellate court will not interfere on the question of mere weight of evidence unless the preponderance of testimony is very great, and the verdict so strongly opposed to all reasonable probabilities as to be the manifest result of mistake, bias or prejudice. Mauerman v. Railroad, 41 Mo.App. 357; Adler v. Wagner, 47 Mo.App. 25; Wilburn v. Railroad, 48 Mo.App. 225; Lovell v. Davis, 52 Mo.App. 349, and cases cited in said decisions. (7) It is only where there is no substantial evidence to support the verdict that an appellate court will interfere. Russell v. Reagan, 34 Mo.App. 244; Finkelnburg's Mo.App. Practice, pp. 110-112, and cases there cited.


Page 467

[124 Mo. 91] Brace, J.

This is an action for damages brought by Carolina Boettger, for the death of her husband Ferdinand or Frank Boettger, who lost his life on the nineteenth day of April, 1892, while in the employment of the defendant. The plaintiff had judgment in the court below for $ 3,000, and the defendant appeals.

Plaintiff's cause of action as stated in the petition is, "that on the nineteenth of April, 1892, the said deceased was in the employ of defendant in the capacity of a common laborer, whose duty it was to perform such work as might be required of him; that on said day he was ordered by defendant to work upon a scaffold around a tower of a high...

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