67 S.W. 221 (Mo. 1902), Kaminski v. Tudor Iron Works

• Judge: ROBINSON, J. Valliant, J., absent.
• Parties: KAMINSKI, Appellant, v. TUDOR IRON WORKS
• Docket Number: .
• Citation: 167 Mo. 462,67 S.W. 221
• Court: Missouri Supreme Court
• Date: 12 March 1902

Page 221

67 S.W. 221 (Mo. 1902)

167 Mo. 462

KAMINSKI, Appellant,

v.

TUDOR IRON WORKS

Supreme Court of Missouri, First Division

March 12, 1902

Appeal from St. Louis City Circuit Court. -- Hon. Wm. Zachritz, Judge.

Affirmed.

Sterling P. Bond for appellant.

(1) In no case should expert or opinion testimony be received except it be based upon facts already established and asked of witnesses duly qualified as experts. 2 Rice on Evidence, 328, 358; Kaiser v. Railroad, 66 Mich. 390; Van Wycklen v. Brooklyn, 118 N.Y. 430; U. S. v. Pendergast, 32 F. 201; Hopt v. Utah, 120 U.S. 437; Senn v. Railroad, 108 Mo. 150; Russ v. Railroad, 112 Mo. 48; Colb v. Sandwich Co., 36 Ill.App. 424; Benjamin v. Railroad, 50 Mo.App. 607. (2) It was the duty of the master to furnish a sufficient force of men. Craig v. Railroad, 54 Mo.App. 526; Stoddard v. Railroad, 65 Mo. 514; Bemis v. Railroad, 58 Vt. 639; Claybaugh v. Railroad, 56 Mo.App. 630. (3) In an action by a servant against his master, for injuries received through the negligence of the master, the presumption is that plaintiff performed his duty until the contrary is shown. Stepp v. Railroad, 85 Mo. 229; Petty v. Railroad, 88 Mo. 306; Bluedorn v. Railroad, 108 Mo. 448; Keegan v. Kavanaugh, 62 Mo. 230; Lee v. Geo. Knapp & Co., Publishers, 137 Mo. 385; Winters v. Railroad, 39 Mo. 475. (4) There was no defense set up in the answer that Kaminski's fellow-servants contributed to his injury, and there was no testimony to the effect that his fellow-servants contributed to his injury; hence, the court erred in giving instruction 3 for the defendant. Hudson v. Railroad, 101 Mo. 29; Seckinger v. Mfg. Co., 129 Mo. 602. (5) The court erred in giving instruction 4 at the request of the defendant. (6) The court erred in permitting defendant's witness, Hanspeter, to testify that the company paid the doctor bill for plaintiff, as the plaintiff did not claim any obligation on the part of the defendant on that account. Morris v. Railroad, 100 Mo. 505.

G. A. Finkelnburg for respondent.

(1) The admissibility of expert testimony is largely in the discretion of the trial judge, with which discretion appellate courts will not ordinarily interfere. Helfenstein v. Medart, 136 Mo. 615. (2) The witnesses whose opinions were asked in regard to the construction and operation of the machinery here in controversy were qualified as experts by long practical experience. Theoretical education is not necessary in such cases. Lawson on Expert Testimony, pp. 70 and 210; Rogers on Expert Evidence, secs. 109, 110; Oil Co. v. Gibson, 63 Pa. St. 146; Goins v. Railroad, 47 Mo.App. 181; McPherson v. Railroad, 97 Mo. 255. (3) Hypothetical questions formally reciting all the facts in evidence are not required when the witness has personal knowledge of the facts on which his opinion is asked. Rogers on Expert Evidence, pp. 70-75; Lawson on Expert Testimony, rule 42, p. 257; Railroad v. Bailey, 11 Ohio St. 337; Brown v. Huffard, 69 Mo. 305. (4) If the evidence shows that the accident was caused by the neglect of plaintiff's fellow-workmen, that is, by third persons for whom defendant is not responsible to plaintiff, then plaintiff has simply failed to make out a case and defendant is not liable. It is not necessary to plead this defense specially in the answer. It is one of the issues in the case under a general denial. Sheehan v. Prosser, 55 Mo.App. 569; Wilson v. Railroad (S. Car.), 28 S.E. 91; Sayward v. Carlson, 1 Wash. 29. The principle is also recognized in Young v. Kansas City, 27 Mo.App. 101; Greenway v. James, 34 Mo. 328; Secking v. Philibert, 129 Mo. 599; Marshall v. Schricker, 63 Mo. 308; Murray v. Railroad, 98 Mo. 573. And it is too late to raise this question of pleading at this time and in this court. Epperson v. Tel. Co., 155 Mo. 370. (5) As to the foregoing and all other questions raised by appellant's brief in this case, it is further submitted that upon the whole record the judgment in this case was so evidently for the right party that the court will not disturb it on account of any hypercritical objections to the rulings of the court below on questions of evidence and practice. In other words, nothing has occurred during the trial of this case which can be construed into reversible error. Secs. 658 and 865, R. S. 1899; Young v. Hudson, 99 Mo. 102; Rodney v. McLaughlin, 97 Mo. 426; Bartley v. Railroad, 148 Mo. 124.

ROBINSON, J. Valliant, J., absent.

OPINION

[167 Mo. 465] ROBINSON, J.

This is a suit by plaintiff to recover damages for the loss of a thumb alleged to have been caused by the negligence of defendants. The negligence charged in plaintiff's petition is twofold: first, the failure of defendant to provide a reasonably safe appliance with which to do the work he and others engaged with him were required to perform, in this, that the derrick or hoisting machine (at which he and his co-laborers were working) was not furnished with a brake-dog to arrest or stay the load that was placed upon its arms or crane, while being hoisted or lowered by use of the machine; and, secondly, because of the failure of defendant to furnish a sufficient number of men to operate the derrick when so heavily loaded, as upon the occasion of plaintiff's injury. The answer is a general denial with a plea of contributory negligence on the part of plaintiff. The case was tried by a jury under instructions from the court, and resulted in a verdict and judgment for defendant, and plaintiff, after the usual steps taken, has brought the case here for review.

Appellant's first and chief assignment of error is to the action of the trial court in permitting, over his objection, several witnesses called by defendant (who were shown to be perfectly familiar with the appliance at which plaintiff was...