Bollinger v. Curtis & Co. Mfg. Co.

• Decision Date: 05 March 1923
• Docket Number: No. 22784.,22784.
• Citation: 249 S.W. 907
• Parties: BOLLINGER v. CURTIS & CO. MFG. CO.
• Court: Missouri Supreme Court

249 S.W. 907

BOLLINGER v. CURTIS & CO. MFG. CO.

No. 22784.

Supreme Court of Missouri, Division No. 1.

March 5, 1923.

Motion for Rehearing Overruled April 6, 1923.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Robert Bollinger against Curtis & Co. Manufacturing Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Hudson & Hudson, of St. Louis, for appellant.

John E. Mooney and George Barnett, both of St. Louis, for respondent.

JAMES T. BLAIR, J.

The statement of appellant is as follows:

"This is a suit to recover damages and for personal injuries sustained by plaintiff, appellant here, on the 20th day of November, MS, while he was in the employ of the defendant, respondent here, by large steel rings falling on him while he was attempting to load them onto a truck in the course of his employment, and was injured in such a manner as to cause his leg to be amputated.

"Upon trial in the circuit court before a jury, the jury rendered a verdict in favor of defendant, respondent. Plaintiff filed his motion for a new trial in due time, and when the court overruled it he appealed in due time, and he now presents this appeal because of the errors committed by the trial court in the introduction of testimony and refusal off instructions offered by defendant over plaintiff's objections.

"The amended petition filed in the case alleges, in substance, that the defendant Curtis & Co. Manufacturing Company was a duly organized corporation under the laws of Missouri; that the plaintiff was employed by them as a common laborer and was placed by the company under the direction of Mike Lubinsky in filling small trucks or cars run on a small track with certain proportions of steel rings, coupling bars, and other metal; that all the metal handled by plaintiff was taken out of three bins placed side by side; that a scale to weigh the metals as they were placed in the trucks was opposite the first bin, which was the closest to the elevator; that there were only about 14 inches between the track and the bins, and the steel truck projected over the side of the track 5 or 6 inches, leaving only a few inches difference between the bins and the trucks, the bins having been described to be about 4 feet wide, 6 feet deep and from 4½ to 5 feet high; that the steel rings were placed in the first bin and the other metals in the other two bins; that in attempting to get the rings out of the bin, there being no guard in front of the bins, the round steel rings would roll, and, if one were pulled out, that would cause the whole pile to topple; they would strike plaintiff on the legs, which could have been prevented had defendant placed some sort of a guard in front of the bins, and that because of the truck behind him, plaintiff was unable to escape the shower of steel rings when they fell on him; that on the day of the accident a ring or rings hit him on the leg about 4 inches above the ankle, injuring him in such a manner that four days after the accident he was taken to the hospital, and, after a large number of minor operations had been performed, his left leg was amputated near the hip. Plaintiff sues for $50,000.

"The amended answer filed by defendant was a plea of contributory negligence coupled with a general denial. Plaintiff thereupon filed a denial, denying the new matter set up in defendant's answer, and upon these issues the trial was had."

In addition it may be stated that there was evidence tending to prove sufficient of the essential allegations of the petition. The amputation of appellant's leg occurred some 13 months after the date on which he alleges he was injured. There was evidence tending to prove care in piling the rings in the bin and in the method of loading and moving the trucks, and evidence that a hook was furnished for that purpose, but was not used by appellant. There was evidence that the rings were loosely piled, 6 or 8 feet high, that no guard was placed across the front of the bins, and that when a ring was pulled out the whole pile would fall. There was evidence, to the contrary, that a guard was in place; that the rings were not piled high and never high enough for them to fall down; that appellant received no injury on his leg from a fall of rings and did not complain of any that day, but did go to the emergency hospital and have a finger dressed, which was mashed in some way; that he worked the rest of that day and did not complain of his leg for several days, though he was known to have walked for considerable distances in the meantime. In the petition the condition of appellant's leg, which months later resulted in its amputation, is described. It is alleged that it became sore, swollen, and painful and that "gangrenous poison set in" and "it became painful, swollen, suppurating, mortified, and infected, necessitating several operations, and became and was permanently stiff in the knee and ankle joints, continuing to suppurate and mortify." The skin on the leg was not broken, so appellant testifies, but'"the flesh was shattered to the bone," according to him. The injury, if any, was on the front part of the lower fore leg. Appellant admits he did not say anything at the emergency hospital about having just had his leg hurt, but did have his finger dressed. It is alleged the injury occurred November 20, 1918. The physicians who attended appellant at the hospital from November 25, 1918, until October 1, 1919, were not produced. The two who testified said that October 1, 1919, when they took charge, appellant was suffering from a contracture of the knee joint of about 90 degrees, loss of sensation, and atrophy of the leg below the knee; that there was evidence of numerous incisions below the knee; that the leg was amputated because it could "under no conditions" have been used as it was. The amputation was performed about December 1, 1919.

I. The refusal of instruction 5, asked by appellant, is assigned for error. This is a long instruction which purported to cover the case and authorize a verdict. It Is unnecessary to set it out. (1) It is but an amplification of instruction 4, given at appellant's request, which more clearly and fairly submitted the same issue. Its refusal is justifiable on that ground. (2) The instruction contains language which is misleading, in that it is open to the construction that the court is directing the jury, as a matter of fact and law, that a guard "was known to the defendant to be necessary for the safety of its employees working around said bin en bins." Appellant's instruction 1, which was given, was intended to submit to the jury the question whether the failure to provide a guard was negligence. These considerations warranted the ruling attacked. (3) The instruction, at its close, contains the following: "* * * If you find no evidence or circumstances to the contrary, you may assume that plaintiff, at the time he was injured, was in the exercise of ordinary care." Previously, the same instruction submitted the question of appellant's freedom from negligence. Contributory negligence was pleaded. There was evidence tending to prove it. The effect of the language quoted would have been to have submitted to the jury the question of law, whether there was substantial evidence tending to prove appellant's contributory negligence. Appellant's instruction 6, though re" fused, tendered an issue of fact as to contributory negligence. This invitation the court was warranted in accepting, not only to the extent of giving instructions for respondent upon that issue, but also for the purpose of testing the soundness of this same instruction with respect to the issue of contributory negligence. Besides, there was evidence tending to prove respondent's plea in that behalf, and the question whether there was such evidence was not for the jury. It would have been an' invitation to them to decide that issue for appellant on a question of law, i. e., the sufficiency of the evidence. The ruling was right.

II. It is urged that instruction 4, giver: for respondent, is erroneous in that: (a) It is repugnant to instruction 5, given for respondent; (b) it singles out special facts and gives them undue prominence; and (c) it "requires the jury to find that plaintiff's left leg was diseased, and this is broader than the pleadings." Instruction 4 reads as follows:

"The court instructs the jury that, before you can assess damages against defendant because of the...