37 S.W. 115 (Mo. 1896), Herdler v. Buck's Stove and Range Company

Citation:37 S.W. 115, 136 Mo. 3
Opinion Judge:Gantt, P. J.
Party Name:Herdler, Appellant, v. Buck's Stove and Range Company
Attorney:A. R. Taylor for appellant. C. P. & J. D. Johnson for respondent.
Judge Panel:Gantt, P. J. Sherwood and Burgess, JJ., concur.
Case Date:November 20, 1896
Court:Supreme Court of Missouri

Page 115

37 S.W. 115 (Mo. 1896)

136 Mo. 3

Herdler, Appellant,

v.

Buck's Stove and Range Company

Supreme Court of Missouri, Second Division

November 20, 1896

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher, Judge.

Reversed and remanded.

A. R. Taylor for appellant.

(1) This court upon this appeal will only consider the correctness of the grounds specified by the trial judge in sustaining the motion for a new trial. If they are unsound, the court will reverse and direct the trial court to enter up judgment on the verdict. Millar v. Madison Car Co., 31 S.W. 575; Candee v. Railroad, 31 S.W. 1032. (2) There was no improper admission of testimony offered by the plaintiff. (3) The remarks made by counsel for defendant and by the judge in the presence of the jury afforded no ground for a new trial. (4) There was no error in the rulings on the instructions.

C. P. & J. D. Johnson for respondent.

(1) The trial court properly sustained the motion for a new trial, for the error committed in refusing to give defendant's instruction directing the jury to find for it under the pleadings and the evidence. First. Because the injury to plaintiff resulted from the acts of an independent contractor, for which defendant was in no wise responsible. Morgan v. Bowman, 22 Mo. 538; Hilsdorf v. City, 45 Mo. 98; 14 Am. and Eng. Ency. of Law, 830. Second. Because the fall of the column which occasioned the injury to plaintiff was one of the risks incident to plaintiff's employment. Jackson v. Railroad, 104 Mo. 448; Bohn v. Railroad, 106 Mo. 429; Alcorn v. Railroad, 108 Mo. 81; Thomas v. Railroad, 109 Mo. 187; Williams v. Railroad, 119 Mo. 316; Fugler v. Bothe, 117 Mo. 475; 14 Am. and Eng. Ency. of Law, 842. Third. The defense that plaintiff assumed the risks of the employment, or of contributory negligence, is properly raised by the pleadings and the evidence. Reichla v. Gruensfelder, 52 Mo.App. 58; Schlereth v. Railroad, 96 Mo. 509; Hudson v. Railroad, 101 Mo. 13. (2) The trial court's action in granting the new trial was likewise justified by its refusal to give, in the form offered by defendant, the instruction which the court afterward gave in an altered shape. See cases cited in first paragraph of point 1, supra. (3) Another valid reason for sustaining the motion for new trial was, that the court below erred in telling the jury in the modification made of the last mentioned instruction, that Inanen was, in fact, defendant's foreman or vice-principal. Wilkerson v. Eilers, 114 Mo. 245; Harrison v. White, 56 Mo.App. 175; Dulaney v. St. Louis, etc., 42 Mo.App. 659; Merriweather v. Kansas, etc., 45 Mo.App. 528. (4) The trial court erred in the controversy with defendant's counsel during the trial, and defendant was prejudiced thereby with the jury. The court exercised a wise discretion in granting a new trial on that ground, and its ruling in that behalf should not be interfered with. McCullough v. Ins. Co., 113 Mo. 606, and cases cited at 619.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

[136 Mo. 6] Gantt, P. J.

This is an action brought by the plaintiff against the defendant to recover damages for personal injuries received on the twenty-sixth day of January, 1893, by the fall of an iron column, against which plaintiff had placed a ladder, and on which he was standing under the direction of one of defendant's superintendents who had charge of and controlled plaintiff in the work he was doing for defendant.

Plaintiff had been employed on the day preceding his employment by defendant's foreman Inanen to work as a carpenter in the erection of a building which defendant was constructing at 3500 North Second street, St. Louis. The Union Iron and Foundry Company had been employed by defendant as an independent and separate contractor to put up the ironwork of its building, included in which were certain upright iron posts or pillars on which a part of the woodwork was to rest for support. The particular work at which plaintiff was engaged when hurt was the adjusting of the wooden beams upon the top of these upright iron posts, which had already been placed in position by the foundry company. These iron pillars or posts had been stationed at the proper distances and stood upright upon their bases and were held in place by braces attached and fastened by the iron workers. These braces consisted of two planks about sixteen feet long, spliced together so as to make a length of about twenty-eight feet and were fastened to a collar or wooden box around the iron columns near the top of the column and extended to within twelve or fourteen feet from the base or foot of the posts, being fastened at that end to a stub or stake driven in the ground about three inches deep. The planks used [136 Mo. 7] in making the braces were an inch thick, six inches wide, and sixteen feet long, -- spliced as already stated. The stake was about two inches thick by four inches wide and the long brace was nailed to the stub or stake by a nail or two, -- ten or twelve penny wire nails. The plaintiff had not seen these posts erected and had worked in the building only the preceding half day before he was hurt on the morning of January 26, 1893.

The attention of the foreman had been called by the carpenters, notably by August Lauth, prior to plaintiff's injury, to the fact that these posts were insecurely braced. Lauth testified: "I saw some columns raising and I went to Ignon [Inanen] and told him the braces were too weak to hold these columns and that an accident would happen and he answered me 'I will see about it.'" Other carpenters testified similarly.

The evidence tended to...

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