Chenoweth v. Sutherland

• Decision Date: 24 January 1910
• Citation: 124 S.W. 1055,141 Mo. App. 272
• Parties: CHENOWETH v. SUTHERLAND.
• Court: Missouri Court of Appeals

124 S.W. 1055

141 Mo. App. 272

CHENOWETH v. SUTHERLAND.

Kansas City Court of Appeals. Missouri.

January 24, 1910.

Rehearing Denied February 7, 1910.

1. TRIAL (§ 156) — DEMURRER TO EVIDENCE.

In passing on a demurrer to evidence, the case as made by plaintiff's evidence, leaving out mere contradictions of that evidence, unless it be contradicted in such way as shows that it could not be true, must be looked to; and, though plaintiff's own testimony be opposed by that of some of his witnesses, he may go to the jury.

2. EVIDENCE (§ 471) — OPINIONS — QUESTIONS CALLING FOR CONCLUSION.

An answer to questions on cross-examination is not subject to objection that it would be stating a conclusion, where the conclusion would be merely that the foreman told witness that he should use pinch bars, and that he would go and get them.

3. EVIDENCE (§ 471) — OPINIONS — QUESTIONS CALLING FOR CONCLUSION.

An inquiry, on cross-examination, calculated to draw out an answer as to the simplest specific fact, should not be cut out on objection that a statement of a conclusion is called for.

4. WITNESSES (§ 275) — CROSS-EXAMINATION.

Plaintiff, on cross-examination as to the foreman directing that an engine be moved by pinch bars which he would go and get, having stated that he did not hear the foreman say that, defendant was entitled to further ask: "Are you prepared to say * * * that you heard all he said, or that you did not hear."

5. WITNESSES (§ 330) — CROSS-EXAMINATION.

Allowing plaintiff to cross-examine defendant's witness with a view of showing that, though present, he did not testify at former trials, witness not being interested, his character not being assailed, and nothing appearing tending to show anything calling on him to vindicate himself, was improper, and tended to prejudice the jury.

6. APPEAL AND ERROR (§ 1053) — HARMLESS ERROR — ADMISSION OF EVIDENCE — CURING ERROR.

It cannot be said that the prejudicial effect of allowing plaintiff, by cross-examination of defendant's disinterested witness, to show that, though he was present, he did not testify at former trials was removed by plaintiff's counsel announcing that he presumed the whole thing was immaterial, and the court telling the jury to entirely disregard the whole line of questions.

Appeal from Circuit Court, Jackson County; Herman Brumback, Judge.

Action by David T. Chenoweth against A. G. Sutherland. Judgment for plaintiff. Defendant appeals. Reversed and remanded.

See, also, 129 Mo. App. 431, 107 S. W. 6.

Warner, Dean, McLeod & Timmonds, for appellant. Rush L. Fisette and Bird & Pope, for respondent.

ELLISON, J.

This action is for personal injury, in which plaintiff prevailed in the trial court. Several of defendant's servants were engaged in removing the main part or body of an engine out of a building. They were under the charge of defendant's foreman, who directed it to be put upon a low-wheeled push car and wheeled out of the building to a pile of I-beams upon which it was to be placed. A derrick was at the I-beams for the purpose of removal of the engine from the car. In attempting to remove it, one of the wire ropes connected with the operation of the derrick broke and fell upon plaintiff's head, inflicting a wound causing, as he alleges, a painful and permanent injury. This is a second appeal; the first will be found reported in 129 Mo. App. 431, 107 S. W. 6, where it will be seen the case was remanded for another trial. We refer to that report for a detailed statement of the facts, a large part of which is applicable to the present record. At the trial from the result of which this appeal was taken, it was plaintiff's theory, as it was before, that he was working in the manner directed by the foreman when the rope broke. It was defendant's theory that he was at that time working in violation of the foreman's orders; that the foreman feared to test the derrick with the weight of the engine, and so expressed himself to the men, saying that he would go to a place near by and get some crowbars with which they would "pinch" it on skids over onto the pile of I-beams.

It is strongly insisted that plaintiff failed to make a case for the jury, and that the judgment should be reversed outright on that ground. But most of the argument to that end includes only a part of the evidence. It is familiar law that in passing on a demurrer to evidence we should look to the case as made by the evidence in plaintiff's behalf, and leave out of consideration mere contradictions of that evidence, unless it should...