Chenoweth v. Sutherland

• Decision Date: 04 March 1912
• Citation: 162 Mo. App. 641,148 S.W. 127
• Parties: CHENOWETH v. SUTHERLAND.
• Court: Missouri Court of Appeals

148 S.W. 127

162 Mo. App. 641

CHENOWETH v. SUTHERLAND.

Kansas City Court of Appeals. Missouri.

March 4, 1912.

1. MASTER AND SERVANT (§ 243)—INJURIES TO SERVANT — DUTY OF SERVANT'S OBEDIENCE.

It is the duty of the servant to obey his master's orders; and, if his disobedience causes or contributes to an injury, the servant has no right of action against the master.

2. MASTER AND SERVANT (§ 286)—INJURIES TO SERVANT—QUESTIONS FOR JURY.

In an action by a servant for personal injuries received through the breaking of a derrick, the question of the negligence of the master held, under the evidence, for the jury.

3. APPEAL AND ERROR (§ 1051)—REVIEW— HARMLESS ERROR.

The admission of testimony as to a fact about which there was no dispute is harmless, though erroneous.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

Action by David T. Chenoweth against A. G. Sutherland. From a judgment for plaintiff, defendant appeals. Affirmed on condition that a remittitur be entered.

Warner, Dean, McLeod & Timmonds, of Kansas City, for appellant. Bird & Pope, of Kansas City, for respondent.

JOHNSON, J.

This is a personal injury case that has been here on two former appeals. The first trial resulted in a verdict and judgment for plaintiff for $2,500. Defendant appealed, and we held in our opinion, written by Broaddus, P. J., that the evidence of plaintiff sustained the cause of action alleged in his petition; but we reversed the judgment and remanded the case for another trial because of prejudicial errors committed against defendant at the trial. 129 Mo. App. 431, 107 S. W. 6. At the second trial the jury found for plaintiff and assessed his damages at $2,000; but the circuit judge granted defendant a new trial, on the ground that his demurrer to the evidence should have been given. The cause was submitted to the jury at the third trial, and a verdict was returned for plaintiff for $7,000. On the hearing of the motion for a new trial the court held the verdict excessive, and to meet this view plaintiff entered a remittitur of $2,500; whereupon the motion for a new trial was overruled, and judgment for plaintiff in the sum of $4,500 was rendered. Defendant appealed, and, in an opinion written by Ellison, J., we again held that the demurrer to the evidence had been properly overruled, but again remanded the cause on account of errors committed against defendant at the trial.

We observed in the opinion that a judgment of $4,500 was far in excess of the damages plaintiff's own evidence showed he had sustained in consequence of the injury. The last trial resulted in a verdict for plaintiff for $5,000. The circuit court deeming this excessive, plaintiff filed a remittitur of $1,000, and the court overruled the motion for a new trial and entered judgment for $4,000. Defendant appealed.

Three propositions are urged by counsel for defendant, viz.: First, that the evidence fails to disclose a cause of action, and therefore that the jury should have been directed to return a verdict for defendant; second, that error was committed in the admission of certain evidence offered by plaintiff; and, third, that the judgment is excessive.

At the time of his injury, plaintiff was employed as a workman at the foundry and machine shops of defendant, and was a member of a gang engaged, under the direction of a foreman, in moving an old engine from the interior of a building out into the yards where it was to be placed on a pile of I-beams. The engine had been stripped of all its detachable parts down to its solid frame, approximately was 8 or 9 feet long, 2 to 2½ feet wide, and 18 inches to 2 feet high, and weighed about 4,500 pounds. It was loaded on a push car and pushed along a railway that ran from the inside of the building out into the yards, and alongside the pile of beams on which it was to be set. Witnesses variously estimate the distance of the pile of beams from the car, where it was stopped, at from 2 to 8 feet; and some of the witnesses say the top of the pile was about the same height as the top of the car, while others say it was a few inches higher. The plan of unloading adopted by the foreman was to use two I-beams for skids, on which to shove the engine from the car to the pile of beams. A small derrick stood on the east side of the track, near the pile, and, under the orders of the foreman, was used to lift the engine, for the purpose of putting one end of the skids under it. The guy cables of the derrick were old, and so worn and rusted that it was not safe to attempt to lift the engine with the derrick and swing it over to the pile. The foreman had knowledge of the limitations of the derrick, and did not purpose to use it, except for lifting a part of the load, and, consequently, devised the method, to which we have referred, of sliding the engine over on the skids with the aid of pinch bars. Below is a cut of the engine, which we reproduce here to elucidate our statement of the facts of the case:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The end with the cylinder on was heavier than the other, and hereafter shall be designated as the front end. The injury to plaintiff occurred during the temporary absence of the foreman, who went into the building to get the pinch bars, which he intended the men to use in sliding the load along the skids. After he left the scene, the men caused the front end of the load to be lifted by the derrick higher than it had been lifted before, intending to push it along the skids without waiting for the pinch bars; and, while thus engaged, a defective guy cable parted, the derrick careened in the opposite direction, and thereby slackened another guy cable, which sagged down and struck plaintiff on the head, inflicting the injuries of which he complains. Plaintiff contends that negligence of defendant in using a defective derrick was the cause of his injury. Defendant's position is that disobedience by plaintiff...