Millar v. Madison Car Company
| Decision Date | 19 November 1895 |
| Citation | 31 S.W. 574,130 Mo. 517 |
| Parties | Millar v. Madison Car Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.
Reversed and remanded.
A. & J F. Lee for appellant.
The court below erred in sustaining the motion for a new trial because: First. Instruction number 5 for defendant was properly given. Henry v. Railroad, 113 Mo. 534. Second. Instruction number 6 for defendant was properly given. O'Mellia v. Railroad, 115 Mo. 217. Third. Instruction number 9, given by the court on its own motion, was proper. Henry v. Railroad, 109 Mo. 494; Seligman v. Rogers, 113 Mo. 658; McFadin v. Catron, 120 Mo. 270. Fourth. The order of the superintendent Miller to plaintiff to measure the die was neither alleged nor proved to have been negligently done, and could not, therefore, be considered as a negligent act. Ravenscraft v. Railroad, 27 Mo.App. 622; Schneider v. Railroad, 78 Mo. 295; Waldheier v. Railroad, 75 Mo. 514.
Nathan Frank and Chas. W. Bates for respondent.
(1) The errors alleged by appellant are wholly insufficient to justify a reversal of the trial court in granting a new trial. First. The action of the trial court in granting a new trial is presumed to be correct, and, unless appellant shows the contrary, the judgment will be affirmed. It is incumbent on appellant to show material prejudicial error. Bank v. Armstrong, 92 Mo. 265; Hewitt v. Steele, 118 Mo. 463; Milling Co. v. Transit Co., 26 S.W. 704; Bank v. Wood, 27 S.W. 554; Wentzville Tobacco Co. v. Walker, 27 S.W. 639; R. S. Mo. 1889, sec. 2303; Henry v. Railroad, 113 Mo. 525. Second. The supreme court should sustain the action of the trial court in granting a new trial, if a new trial can be sustained on any ground set forth in the motion for a new trial, irrespective of the reasons given by the court for sustaining same. Hewitt v. Steele, 118 Mo. 463, 472-474; Bank v. Wood, 27 S.W. 554; Milling Co. v. Transit Co., 26 S.W. 704; Bank v. Armstrong, 92 Mo. 265. Or on any ground mentioned in the order of court for granting a new trial, although such ground is not contained in the motion. Milling Co. v. Transit Co., 26 S.W. 704; Lovell v. Davis, 52 Mo.App. 342; Hewitt v. Steele, 118 Mo. 473. Third. Errors not alleged by appellant in his brief will not be considered by the supreme court. Supreme Court Rules, No. 15. See Smith v. Johnson, 107 Mo. 494. (2) Instruction number 5 for defendant was not applicable to the case at bar, was misleading to the jury and submitted to them a question of law, and was not justified by the evidence. Nichols v. Crystal Plate Glass Co., 27 S.W. 516; Browning v. Railroad, 27 S.W. 644; Blanton v. Dold, 109 Mo. 64; O'Mellia v. Railroad, 115 Mo. 205; Miller v. Railroad, 109 Mo. 350; Girard v. Car Wheel Co., 46 Mo.App. 79; Schroeder v. Railroad, 108 Mo. 322; Dayharsh v. Railroad, 103 Mo. 570; Stevens v. Railroad, 96 Mo. 207; Porter v. Railroad, 71 Mo. 67. (3) Instruction number 6 for defendant was not applicable to the case at bar; there was no evidence upon which to base it and it was misleading to the jury. Browning v. Railroad, 27 S.W. 644; Steinhouser v. Spraul, 114 Mo. 551. See, also, cases cited under 2. (4) Instruction number 9 given by the court was not justified by the evidence in the case. Henry v. Railroad, 109 Mo. 488. (5) Appellant's fourth assignment of error is not well taken.
This is an action for personal injuries sustained by plaintiff while in the defendant's employment.
The petition states that plaintiff, a draughtsman and pattern maker, was employed by the defendant as such in its pattern shop; that on December 24, 1891, he was ordered by his foreman, Miller, to go into defendant's blacksmith shop and obtain the measurement of a certain die needed for use in a steam hammer which was in the blacksmith shop, operated by steam and worked by a treadle; that there was then a pit or hole, three feet in width, three and one half feet in depth, and six feet in length, in front of the hammer; that in obedience to the command of Miller he went to the foreman of the blacksmith shop, Little, and was negligently directed by Little to the hammer containing the die, and was negligently permitted by him to take the required measurements of the die while it was in the hammer; that defendant had carelessly and negligently left the hammer with the steam turned on, and had neglected to block it, and had carelessly and negligently permitted the pit in front of it to remain uncovered; that the foreman of the blacksmith shop, Little, knew, or by the exercise of reasonable care might have known, that plaintiff could not safely take the measurements of the die in the hammer while in its then condition, and that this fact was not known to plaintiff; that by reason of certain defects in the hammer, known to the defendant, but not known to the plaintiff at that time, the hammer was apt, without any visible cause, to kick and begin working; that while plaintiff was taking the measurements of the die in the hammer under those circumstances it did kick and come down, catching and crushing plaintiff's hand so that its amputation was necessary. By reason solely of the negligence of the defendant as aforesaid, plaintiff has suffered injury to the extent of $ 20,000, for which he prayed judgment.
The answer denied that it was in obedience to any order from Miller that plaintiff went to Little; denied that Little directed him negligently, or otherwise, to go to the hammer containing the die; or that Little negligently, or otherwise, permitted him to take the measurements of the die while in the steam hammer; or that defendant was guilty of any negligence in leaving the hammer with the steam turned on without being blocked; or that the pit was entirely uncovered; admits that it was partially uncovered; denies that Little knew, or by the exercise of reasonable care might have known, that plaintiff could not take the measurements of the said steam hammer in its then condition; or that there were any defects in the hammer at that time; or that they were known to defendant; or that the hammer was apt, without visible cause, to kick or begin working; or that the hammer came down on account of any defect or without any visible cause; or that it kicked before coming down; avers that plaintiff was employed not only in the pattern shop, but in the blacksmith shop as well, and could have taken any measurements he needed to take while the steam hammer was as it was at the time of the accident without injury or danger to himself; denies all the negligence charged. The second count of the answer states plaintiff was guilty of negligence in placing his right hand on the die while he pressed his foot on the treadle, when he knew, or by the exercise of ordinary care might have known, that doing so would inflict the injuries which he sustained; and that he was injured by reason of his negligence. The reply was a denial of the new matter in the answer.
The case was tried before a jury, which returned a verdict for the defendant. Plaintiff filed a motion for a new trial in the usual form. The motion was sustained by the court by an order in the following words:
From the order granting a new trial, defendant appealed to this court.
I. The sole question for decision is the alleged error in awarding a new trial.
Section 2246, Revised Statutes, 1889, amended by an act approved April 18, 1891, secures to any party aggrieved the right of appeal to the court having appellate jurisdiction "from any order granting a new trial." Section 2241, Revised Statutes, 1889, provides that "only one new trial shall be allowed to either party, except: First, where the triers of the fact shall have erred in a matter of law; second, when the jury shall be guilty of misbehavior; and every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted."
Prior to the amendment of section 2246, an order setting aside a verdict and granting a new trial was not a final judgment from which an appeal could be prosecuted, but the decisions of this court were to the effect that when the trial court improperly granted a new trial or arrested a judgment, the party complaining might avail himself of the error by tendering his bill of exceptions and abandoning the case at that point and when a final judgment was thereafterward rendered in said cause he might then by excepting thereto take and support an appeal and in that way secure a review of the error in granting a new trial. And it was held in Bank v. Armstrong, 92 Mo. 265, 4 S.W. 720, that if the motion was properly sustained upon any of the grounds assigned in the motion, the judgment of the lower court would be affirmed.
In Hewitt v. Steele, 118 Mo. 463, 24 S.W. 440, the ruling in Bank v. Armstrong, was followed and in Bank v. Wood, 124 Mo. 72 (27 S.W. 554) Hewitt v Steele was followed and approved. In the more recent case of E. O. Stanard Milling Co. v. Transit Co., 122 Mo. 258 at 269 (26 S.W. 704) it was said: "Nothing can be considered by this court, save and except the grounds set forth in the order of the court sustaining the motion as appears from the record, and the grounds set...
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