Choate v. City of Springfield

• Decision Date: 02 October 1934
• Docket Number: No. 5405.,5405.
• Citation: 74 S.W.2d 869
• Parties: CHOATE v. CITY OF SPRINGFIELD et al.
• Court: Missouri Court of Appeals

74 S.W.2d 869

CHOATE v. CITY OF SPRINGFIELD et al.

No. 5405.

Springfield Court of Appeals. Missouri.

October 2, 1934.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

"Not to be published in State Reports."

Action by Sheridan Choate against the City of Springfield, Mo., and another. From a judgment for plaintiff, defendants appeal.

Reversed and remanded for a new trial.

Orin Patterson and Kirby W. Patterson, both of Springfield, Dan M. Nee, of Kansas City, and Herman Pufahl, of Bolivar, for appellants.

Douglas & Douglas, of Bolivar, and Harold T. Lincoln and Williams & Stone, all of Springfield, for respondent.

SMITH, Judge.

This is a suit for personal injuries against the city of Springfield and its street department foreman, E. M. Clark. The petition, omitting caption and signature, is as follows:

"Now comes plaintiff in the above-entitled cause and states to the court that during all times hereinafter mentioned, the defendant, the City of Springfield, Missouri, was a city of the second class, and that on the 16th day of June, 1928, plaintiff was in the employ of the defendant, City of Springfield, Missouri, and, pursuant to his duties as servant of this defendant, was engaged with other servants of defendant in constructing a city waterway at a point just north of Atlantic Street and on the east side of Fort Street in said City of Springfield, Missouri, and while so engaged the plaintiff, while in the exercise of ordinary care, was struck in the right eye by a piece of stone which has completely destroyed the sight of plaintiff's eye; that plaintiff is and will be permanently blind in said right eye and that as a result of the injury to the same, his left eye is involved and the vision thereof impaired and may be completely lost; that plaintiff, because thereof and in addition thereto, has received a severe shock to his nervous system and that his said injuries are severe and permanent.

"Plaintiff further states that his said injuries are the direct result of the negligence of the defendants herein in this, to-wit: That defendant, the City of Springfield, Missouri, had as its foreman, under whom plaintiff at the time was working, the defendant, Eugene Clark, whose orders plaintiff was obliged to obey; that the defendants knew that plaintiff was not an experienced rock breaker but was by occupation a truck driver; that defendant, the City of Springfield, Missouri, through its foreman, Eugene Clark, and the defendant, Eugene Clark, on said date, to-wit, June 16, 1928, negligently directed plaintiff to take what is known as a striking hammer and to break rock therewith on the waterway project above mentioned, when the defendants herein well knew or by the exercise of ordinary care and caution could have known that it was dangerous to use a striking hammer for that purpose, and that in using the same in breaking rocks, chips, slivers, and splinters, while same was being so used, were liable to fly from the rocks broken, in such a manner as to strike plaintiff and injure him. That, nevertheless, the defendant, City of Springfield, Missouri, through its foreman, Eugene Clark, and the defendant, Eugene Clark, himself, negligently directed plaintiff to do said work with said striking hammer; that while plaintiff was engaged in using said hammer in the manner directed by defendants, as hereinbefore stated, said hammer, while being so used, caused a chip, particle or splinter of rock to fly and to strike plaintiff's right eye, injuring him in the manner hereinbefore set out.

"Plaintiff further states that he was unskilled in the breaking of rock, was unfamiliar with the proper tools to be used therefor, and unfamiliar with the danger connected with the use of a striking hammer in the breaking of rocks, all of which defendants herein well knew at the time.

"That it was the duty of defendants herein to furnish plaintiff while working, as aforesaid, the proper, necessary and reasonably safe tools and appliances with which to work, but that on the aforesaid date both of the defendants herein failed to exercise ordinary care in that regard by furnishing plaintiff, and requiring him to do the work above described, with a striking hammer, when the proper, usual, customary and safe tool with which to do said work was what is known as a rock hammer made especially for the breaking of rocks; that the use of said striking hammer in the manner in which plaintiff was required to use it, and for the purpose that plaintiff was required to use it as aforesaid, was a dangerous and unsafe way of doing said work and was not reasonably safe, and said striking hammer was not a reasonably safe tool with which to do said work in that when a rock is struck with such a hammer while being so used, the rock so struck is liable to chip or splinter while plaintiff was using said striking hammer for the purpose and in the manner in which he was directed to use the same as hereinbefore set out, causing a chip or splinter of rock to strike plaintiff's eye and injure him as hereinbefore alleged.

"Plaintiff further states that said injuries above mentioned have caused him in the past and will cause him in the future to suffer severe pain of body and anguish of mind attendant and consequent thereon, and that he has expended, because of said injuries occasioned as aforesaid, large sums of money in medicine and medical attention. That because of the negligence and carelessness of defendants herein as above set out and as hereinbefore stated plaintiff will be permanently blind in said right eye and his left eye on account thereof has become involved, and the vision affected and may be completely lost, and that as hereinbefore stated his injuries are severe and permanent.

"Wherefore, plaintiff prays judgment against defendants herein in the sum of $25,000.00, together with his costs herein laid out and expended."

The answer, after admitting that the city of Springfield is a municipal corporation, and is a city of the second class, is a general denial of the allegations of the petition. Trial was had to a jury, which returned a verdict in favor of the plaintiff in the sum of $5,000, and judgment was entered accordingly.

Motion for new trial was filed and overruled, and defendants appealed to this court.

One of the contentions of the appellants...