Chapman v. Bertha A. Mining Co.
| Decision Date | 19 January 1914 |
| Parties | T. H. CHAPMAN, Respondent, v. BERTHA A. MINING CO., Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court, Division Number Two.--Hon D. E. Blair, Judge.
AFFIRMED.
Judgment affirmed.
R. M Sheppard, R. F. Stewart and J. P. McCammon for appellant.
(1) The petition does not state facts sufficient to constitute a cause of action, and is not sufficient to support the verdict and judgment herein. Yogue v. Railroad, 112 S.W 985. (2) In an action for negligence, plaintiff must show not only the negligence, but that defendant's act caused the injury complained of. Harper v. Terminal Co., 187 Mo. 575; Deschner v. Railroad, 200 Mo. 310. (3) The court committed error in instructing the jury that, in assessing plaintiff's damage, they might take into consideration the nature and extent of plaintiff's physical injuries, whether temporary or permanent, there being no evidence whatever in this record that plaintiff's injuries were permanent. Esque v. Railroad, 157 S.W. 1065; Murray v. Railroad, 101 Mo. 206; Cobb v. Railroad, 149 Mo. 630.
R. A. Mooneyham for respondent.
(1) The petition states a cause of action and is certainly sufficient after a verdict. (2) A demurrer admits the truth of every particle of the testimony offered by the plaintiff and every inference that can be reasonably drawn therefrom, in favor of the plaintiff. Hatch v. Railroad, 208 Mo. 581; Kinlen v. Railroad, 216 Mo. 145; Pittham v. Scaitham, 127 Mo.App. 29; Miely v. Railroad, 215 Mo. 567, 585.
Plaintiff obtained a judgment against the defendants in the circuit court for $ 250, on account of personal injuries received at the mining plant of the defendant on or about September 11, 1912, and the defendant has appealed.
As grounds for his recovery plaintiff alleged that he was what is called a helper to the jig man in defendant's mill when the foreman therein directed and ordered him to throw a certain belt off of a pulley while the machinery was in operation; that the belt was twelve inches in width and had been spliced with a piece of belting of the width of about ten inches, so that there was an offset and unevenness in the belt and that while endeavoring to throw said belt off by means of an iron bar, the only accessible instrument therefor, the belt caught the bar in such a manner as to cause it to strike him on the left side of his head and on his left ear and jaw, bruising his face and destroying the hearing in his left ear, for which he asked damages in the sum of $ 5000. The trial was to a jury.
It is insisted by the appellant here that the petition does not state facts sufficient to constitute a cause of action; that the allegation of negligence in the petition, which was submitted to the jury under instructions, was that the belt had been spliced in one place with a piece of belting so that there was an offset and unevenness in the belt at that point, but that there is no allegation in the petition that the accident resulting in the plaintiff's injury was caused by this defect in the belt. The belt was about forty feet in length and twelve inches wide.
The appellant contends that there is no evidence in the record which shows that there was an offset in the belt at the time of the accident; that even if there was a defect in the belt there is no evidence in the record that the defendant had any knowledge that said defect existed, and that it was incumbent on the plaintiff to show that the bar caught in the offset in the belt.
Complaint is also made that the court erred in refusing to strike out evidence of a witness who testified that he had no knowledge as to the condition of the belt at the time the plaintiff received his injuries.
Error is assigned upon an instruction which submitted to the jury plaintiff's right to recovery for any alleged permanent injuries.
It is also claimed that the verdict is excessive.
Upon the contention of the appellant that the petition does not state facts sufficient to constitute a cause of action, we are of the opinion that it does.
There was no demurrer filed to the petition and no objection made to the introduction of any testimony because the petition did not state facts sufficient to constitute a cause of action and the petition, construed in the liberal manner in which it is our duty to construe it, under these circumstances, does allege the defect in the belt--that there was an offset and unevenness in the belt, and that by reason...
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