Burrows v. Likes
| Decision Date | 12 May 1914 |
| Citation | 166 S.W. 643,180 Mo.App. 447 |
| Parties | CHARLES BURROWS, Respondent, v. J. C. LIKES, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Greene County Circuit Court.--Hon. Arch A. Johnson Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Sam P Jennings, J. T. Craig & John P. McCammon for appellant.
(1) The court erred in permitting plaintiff's counsel to inquire of the jury as to whether they were in the employ of the Southern Surety Company or of the Missouri Fidelity & Casualty Company or if they were stockholders in the Missouri Fidelity & Casualty Company, over the objections of defendant, and in not discharging the panel when requested so to do by defendant. Trent v. Printing Co., 126 S.W 238; Iverson v. McDonnell, 78 P. 202; Cosselman v. Dunfee, 65 N.E. 494; Manigold v. Traction Co., 80 N.Y.S. 861. (2) The court erred in giving the first instruction asked by plaintiff. That instruction directed the jury, if they found defendant had negligently failed to provide plaintiff with a platform upon which to stand while using or adjusting said pump, or to provide guardrails or other barriers to prevent plaintiffs from falling into said pits while at work, or failed to provide sufficient lights for use of plaintiff while he was working in and about said pump or pits, and by reason of any negligence of defendant as aforesaid, plaintiff slipped, etc., then they must find for the plaintiff. Bailey Personal Injuries, sec. 178; 3 Labatt Master and Servant, p. 2501. (3) It is not the duty of the master to furnish any particular kind of tools, implements or appliances. 3 Labatt, p. 2502; Tabler v. Railroad, 93 Mo. 79; Muirhead v. Railroad, 103 Mo. 251; Glover v. Meinrath, 133 Mo. 292; Shinners v. Mullins, 117 Mo.App. 91; Chrismer v. Tel. Co., 194 Mo. 189, 92 S.W. 378; Railroad v. Finerman, 84 Ill.App. 389.
E. G. Wadlow and Neville & Gorman for respondent.
(1) The court committed no error in permitting inquiry of the jury as to whether they were in the employ of the Southern Surety Company or the Missouri Fidelity and Casualty Company. Meyer v. Cunglack-Nelson Mfg. Co., 67 Mo.App. 391. (2) The first instruction was an instruction in general terms and was proper. What acts of defendant constituted negligence under the circumstances was fully and clearly defined in other instructions.
The plaintiff sues for personal injuries resulting in his thumb having to be amputated and alleged to have been received while working for defendant, who, as contractor, was constructing, and excavating for, certain septic tanks connected with the sewage system of Springfield, Missouri. The petition alleges that while working for defendant at the work of excavating for these tanks, he was directed to keep the water out of these pits by pumping same out with a hand pump provided for that purpose. The negligence assigned is: The answer controverted the fact of plaintiff being injured at the time and in the manner alleged, denies defendant's negligence and pleads contributory negligence and assumption of risk by plaintiff and that plaintiff had been settled with and paid for all the injuries received.
This latter allegation of the answer refers to the fact that plaintiff had received injuries about a month previous to the injuries now sued for by having this same thumb caught and crushed in some cogwheels while working for defendant at this same general work. It is conceded that this former injury was settled for in full and defendant denied that plaintiff received any distinctly new injury but claimed that the amputation of the thumb was caused by the injury received from the cogwheels, such injury having reached to the bone and being aggravated somewhat by plaintiff working and using his thumb before same had healed. While there is much evidence to this effect, the plaintiff testified positively that his former injury had become nearly well and that on the night of August 8, 1912, he was again injured by reason of slipping and falling while trying to lift the hand pump and that this pump then fell on his thumb, crushing it between the pump and a piece of timber or stake driven in the ground to keep the pump in place. This question was submitted to the jury under instructions to find for defendant unless the plaintiff received the new injury at the time and in the manner alleged and to allow nothing for the previous injury received from the cog-wheels. While defendant urges that a demurrer should have been sustained to the evidence, we must hold that plaintiff's statement in his own behalf, however, much it was contradicted by other witnesses, furnishes some evidence to make this a question for the jury.
Stated most strongly for plaintiff, the evidence shows that he was working at night with a helper, who became sick about midnight and quit working, leaving plaintiff to continue the work alone; that part of plaintiff's duties was to keep the water pumped out of the large pits, dug in the ground some fifteen to twenty feet deep, so that same would be dry in the morning for the workmen to commence working in the same; that plaintiff used a hand pump weighing about sixty pounds, with a hose attached, which he moved from one pit to the other in pumping water from same; that the pump was fastened to a heavy board two inches thick, ten inches wide, and about four feet long; that this set on the bank some two feet back from the edge of the pit and was fastened down and held in place by stakes driven in the ground, the hose going over the edge of the pit and down to the bottom. It is conceded that the pump merely set on the ground and that no platform, other than the one board to which the pump was attached, was provided and that no guardrail was erected around the pit or between it and the pump. The plaintiff testified, though this was contradicted, that no lights were provided or available for his use except some red lanterns and that these were of no value in giving light to work by; that he had complained and requested lights to be provided and that same were promised but had not yet been furnished when he was injured. Plaintiff's version of the accident is that about two o'clock in the morning, his helper being sick and gone, the night being dark and having no lights, the ground being wet and slippery from recent rain, he attempted to lift the pump to move it to the other pit, slipped and fell, grabbed hold of one of the posts driven in the ground to hold the pump in place and that the pump fell on his sore thumb, crushing it against this stake. His thumb was amputated six days later. The defendant's evidence tended to show that it was not practical to make any platform for this pump or erect a guardrail while digging the pits in the manner the work had to be done.
On this state of facts, the court gave the jury the following instruction, which is the principal instruction in the case: "The court instructs the jury that if you find and believe from the evidence that on or about the 8th day of August, 1912, plaintiff was employed by defendant and that while so employed plaintiff was ordered by defendant to use a certain hand pump in and about certain pits, and you further find that defendant negligently and carelessly failed to provide plaintiff with a platform upon which to stand while using or adjusting said pump, or negligently and carelessly failed to provide guardrails or other barriers to prevent plaintiff from falling into said pits while at work as aforesaid, or negligently and carelessly failed to provide sufficient lights for the use of plaintiff while he was working in and about said pump or pits as aforesaid, and that while in the exercise of ordinary care and while so working and by reason of any negligence and carelessness of defendant, as aforesaid if you find from the evidence defendant was so negligent, and careless, plaintiff slipped and fell into the edge of one of said pits, causing said...
To continue reading
Request your trial