Chenoweth v. Sutherland

• Decision Date: 06 January 1908
• Citation: 129 Mo. App. 431,107 S.W. 6
• Parties: CHENOWETH v. SUTHERLAND.
• Court: Missouri Court of Appeals

107 S.W. 6

129 Mo. App. 431

CHENOWETH v. SUTHERLAND.

Kansas City Court of Appeals. Missouri.

January 6, 1908.

Rehearing Denied January 27, 1908.

1. MASTER AND SERVANT — QUESTIONS FOR JURY.

Whether plaintiff's injury was the result of a defective rope and defendant's failure to inspect it held, under the evidence, a question for the jury.

2. SAME — MASTER'S DUTY TO FURNISH SAFE APPLIANCES.

It is a master's duty to use reasonable care to furnish appliances reasonably safe for the purpose for which they are intended.

3. TRIAL — INSTRUCTIONS — APPLICABILITY TO PLEADINGS AND EVIDENCE — IGNORING DEFENSE.

An instruction in a personal injury action which omits reference to the defense is sufficient where, if the facts to which the instructions apply are found to be true, the defensive matter cannot exist.

4. DAMAGES — EVIDENCE — EARNING CAPACITY.

In a personal injury action, evidence as to permanent injuries and decreased earning capacity considered, and held sufficient to take those issues to the jury.

5. TRIAL — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

An instruction submitting the question of internal injuries was warranted, where the evidence showed an injury to the brain resulting from an injury to the skull.

6. APPEAL — REVIEW — HARMLESS ERROR — INSTRUCTIONS — MATTERS NOT IN EVIDENCE.

Whether a case should be reversed for the giving of an instruction not supported by evidence depends on its probable effect on the minds of the jurors in arriving at their verdict.

7. DAMAGES — ACTIONS — INSTRUCTIONS NOT SUPPORTED BY EVIDENCE.

An instruction for plaintiff, submitting the questions of injury to his back and spine, of permanent injuries, and of decreased earning capacity, required the jury to find that there were injuries to plaintiff's spine, in order to take such injury into consideration in reaching a verdict. There was no evidence of injury to the spine, but there was evidence that he received injuries to his head, and internal injuries, and that he suffered a shock to his nervous system, as well as bodily pain and mental anguish. Held, that the instruction tended to confuse the jury, and constituted prejudicial error.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Davis Chenoweth against A. G. Sutherland. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

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

BROADDUS, P. J.

A decision of the case on a former hearing was set aside, and a new hearing granted, and the parties argued the same anew. Upon consideration we have adopted in the main what was then said, with some modifications. It is as follows:

The plaintiff sues for damages for a personal injury received December 4, 1904, while in the employ of defendant at Rosedale, Kan. The defendant Sutherland was engaged in business at said place, operating a foundry and structural ironworks. The plaintiff had been in his employ for several years as a machinist. On the day named plaintiff and about six other employés were engaged in moving the skeleton framework of a stationary engine from a building out into the yard, where it was to be deposited upon a pile of I beams. For the purpose of accomplishing the work a small push car with an iron skeleton frame was used, running upon a railway track in the yard. The engine frame was to be unloaded onto the I beams by the aid of a derrick. There were four derricks of different sizes and strength on hand. The smallest of these was selected for the purpose, which was situated near the said pile of I beams. The engine skeleton frame was about nine feet long and two feet wide, and weighed about a ton. It is admitted that the derrick selected for the work was not of sufficient weight and strength to support with safety the whole weight of the frame. The operation was under the direction of Louis Althoff, the foreman of the gang of men. As the derrick was not sufficient to support the weight of the frame, it was the purpose of the foreman to only raise one end of it just high enough to allow it to be skidded over on I beams placed under it onto the said pile. There is no question but what the men, including plaintiff, knew that defendant intended to unload the frame by raising one end of it, so as not to have its entire weight upon the derrick, and to place I beams under it as skids, so that it could be pried off onto the said pile. Outside of what witnesses say in reference to the matter, the manner in which the men proceeded in the work was sufficient to impart that information. The plaintiff testified that, after a chain had been put around one end of the frame and attached to the derrick, the men proceeded to raise it; that in raising it one end continued to rest on the push car; that when the end had been raised about 14 inches the rope of the derrick broke and the frame fell, causing his injury; that he did not see the foreman at the time, but supposed he was present, and did not know that he had been absent during the time they had been engaged at the work. It is claimed by defendant that the men disobeyed the foreman's orders by raising the frame too high, thus throwing greater weight upon the derrick, causing the attachment or ropes of the latter to break.

George Tucker, one of plaintiff's witnesses, testified that the foreman, when they took the car out, gave orders and instructions to one of the men by the name of Young not to raise the skeleton frame too high, as he did not believe the derrick would stand it, and that he then left and went to the mill. "He told us to lift it high enough to get two six-inch I beams under it to make skids." He stated that it was raised higher; that they raised it, and got the six-inch I beams under it, and then Young ordered it raised higher; and it was then when the rope broke. He testified that the rope was old, rusty, and defective. He stated that the men were at the time obeying the directions of Young. Defendant's witness, Young, testified that when the foreman left to go and get the pinch bars they had just begun to raise the frame from the push car with the derrick; that their foreman said to them, "Just to barely lift it, not to lift the entire engine, because he did not think the derrick would stand it;" that after he left "the men began to raise it a little bit"; that "he said only raise it partly until I get those pinch bars"; that he said to only raise it high enough to put the beams under the end of it; and that they raised the frame high enough for that purpose and put the beams under it, but continued to raise it for the purpose of making the work easier. This witness stated that the foreman did not direct him what to do in his absence, but that his orders were directed to all the men generally. Charles Otis, another of defendant's witnesses, corroborates the witness Young in the most important particulars. The plaintiff testified that the derrick was attached to the frame in the following manner. One end of the chain was put around the cylinder at one end of the frame, and the other end of the chain was fastened around "the lugs back where the fly wheel goes on," and hitched to the derrick. And another witness stated that the rope of the derrick was attached a little nearer to the end than to the center of the frame, and that when the frame had been raised at one end to the elevation at which the rope broke the other end was scraping the frame.

The verdict and judgment were for plaintiff, and defendant appealed.

The first objection raised by defendant is that plaintiff's petition did not state a cause of action. The defendant has subjected plaintiff's petition to the utmost critical analysis, and has come to the conclusion that it does not state a cause of action. Strictly speaking, the pleading is somewhat unartificially drawn; but we think it states a cause of action, under the Code, which does require the formal precision of statement as at common law. The negligence relied on by plaintiff was the defective and unsafe condition of the derrick, while the ground of the defense is that the injury was the result of the disobedience of the orders of the foreman in raising the frame too high, thus putting too great a strain upon the derrick, which caused the...