Bradshaw v. Lusk

• Citation: 195 Mo. App. 201,190 S.W. 400
• Decision Date: 16 December 1916
• Docket Number: No. 1851.,1851.
• Parties: BRADSHAW v. LUSK et al.
• Court: Missouri Court of Appeals

190 S.W. 400

195 Mo. App. 201

BRADSHAW v. LUSK et al.

No. 1851.

Springfield Court of Appeals, Missouri.

December 16, 1916.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Action by Charles Bradshaw against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad. From a judgment for plaintiff, defendants appeal. Judgment reversed, and cause remanded that plaintiff may plead with particularity.

W. F. Evans, of St. Louis, and Moses Whybark and A. P. Stewart, both of Cape Girardeau, for appellants. David W. Hill, of Poplar Bluff, for respondent.

FARRINGTON, J.

The plaintiff recovered a judgment for $5,000 for the loss of an eye alleged to be due to the negligence of the defendants. The charge of negligence in the petition is as follows:

"The defendants by and through their section foreman, carelessly and negligently failed to provide the plaintiff with a reasonably safe place in which to work, and said section foreman carelessly, negligently and awkwardly attempted to drive a railroad spike into an unsteady fence post in close proximity to the plaintiff, resulting in the spike flying from the fence post and striking the plaintiff in the right eye."

The facts of the case are in substance as follows: That plaintiff was a section hand working for the defendants, and that on October 16, 1915, he was at work repairing a wing fence on a cattle guard, and Charles Gattis, who was the foreman on that day, was driving a spike in a fence post. That Gattis had set the spike by tapping it lightly, and called the plaintiff to come to him, and asked him, "Do you reckon that will do any good? Do you reckon it will bust the post?" The plaintiff came and looked at it and said, "I don't think it would do any good; I think it would bust the post." "And just about that time he drawed back and hit the spike before I could get out of the way — well, I was getting out of the way, while I was getting out of the way, and he hit the spike and it glanced and hit me in the right eye. Gattis set the spike up in the post and then hit it a light lick, so the spike would hold until he got to hit it a hard one. I was back by the side of the fence at work before he called me up there; was out of the way of the spike when called. When he hit the spike I was trying to get out of the way, and was something like 6 feet from him. When I say spike I mean a railroad spike which is about 4½ or 5 inches long, about an inch thick, and a half inch wide, made of steel or iron. The fence post was a white oak post about 4 inches thick and 4 feet tall. He was driving this spike about 3½ feet from the ground." At this point the attorney for the plaintiff asked this question: "Now what kind of a thing was Gattis driving that spike with? Mr. Whybark, attorney for defendants: We object to that; there is no allegation about that." The object was overruled, and defendants excepted. He answered that it was a steel cleaver with a chisel on one end and a hammer on the other. Again, he was asked, "What kind of a lick did it take to make that spike fly off?" He answered, "A glancing lick." The record here recites that Mr. Whybark stated: "We object to that if the court please, nothing alleged about that." And that Mr. Hill remarked: "General negligence." The objection was overruled, and defendants excepted. Again, the plaintiff said: "It was a railroad spike Gattis drove in the post. He hit it with a hammer a glancing lick; I am sure of that; if he hadn't it wouldn't have glanced." The record then recites: "Mr. Whybark: I move to strike out all of the testimony about the glancing lick, hitting the glancing lick, because there is nothing stated in the petition about hitting a glancing lick. Mr. Hill: General negligence, your honor." The objection was overruled, and defendants excepted. It was then shown that a track chisel is not used by section men for the purpose of driving spikes. Gattis, the foreman, admitted that he never saw or heard of a foreman using it and never saw any other man use it in that way. He said, "I suppose this spike glanced. I hit it and in some way it jumped out and flew over and hit Bradshaw." He testified that Bradshaw was within 2 or 3 feet of him.

This is all the evidence in the record before us bearing on any question of negligence.

At the close of all the evidence the court refused a peremptory instruction in the nature of a demurrer to the evidence requested by defendants.

Plaintiff submitted the case on the following instructions:

"A. The court instructs the jury that if you find the issues in this cause for the plaintiff, you should assess his damages at such sum as you may believe, from all the evidence, will be a fair compensation for any pain of body or mind, and for any permanent injuries or disfigurement (if any, or either, or all such) which you may believe from the evidence the plaintiff has sustained, or will hereafter sustain, by reason of his said injuries, if any, and which you may believe from the evidence to have been caused by the railroad spike striking him, if you believe he was so struck; in all not to exceed $10,000."

"B. The term `negligence,' as used in these instructions, means want of ordinary care, and the term `ordinary care' means such care as a person of ordinary prudence would have exercised under the same or similar circumstances."

To the giving of these instructions the defendants excepted.

At the request of defendants the court gave an instruction on contributory negligence, one on assumption of risk, and the following:

"4. You are further instructed that the mere fact that plaintiff was struck and injured by the spike which flew from the post as the section foreman was attempting to drive it into said post does not make the defendants liable for plaintiff's injury; but before plaintiff can recover in this case he must prove to your satisfaction, by the preponderance of the testimony, that his said injury was directly caused by the act of defendants' section foreman in attempting to drive said spike into the fence post, and that such act of said foreman was negligent, and if he has not done so your verdict must be for the defendants."

Appellants contend that plaintiff's instruction A was misleading and constituted error; that the petition failed to state a cause of action; that the court erred in admitting testimony concerning the kind of hammer used and with reference to a glancing lick; and finally that under the evidence the plaintiff was injured as the result of a risk incident to the business and one assumed by him.

We think the objection to instruction A under the facts of this case is well taken, and that the jury as appellants contend in the absence of any instruction defining the issues and acts of negligence on which they could find for the plaintiff might well infer from that instruction that they were to assess damages in plaintiff's favor if they found that the spike which was driven by the foreman struck plaintiff in the eye and injured him. There was no...