Choate v. City of Springfield

• Decision Date: 02 February 1939
• Docket Number: 34401
• Parties: Sheridan Choate v. City of Springfield, a Municipal Corporation, and E. M. Clark, Appellants
• Court: Missouri Supreme Court

124 S.W.2d 1127

343 Mo. 935

Sheridan Choate v. City of Springfield, a Municipal Corporation, and E. M. Clark, Appellants

No. 34401

Supreme Court of Missouri

February 2, 1939

Rehearing Denied February 8, 1939.

Appeal from Lawrence Circuit Court; Hon. Emory E. Smith Judge.

Reversed and remanded.

Farrington & Curtis, E. J. McNatt and Kirby W. Patterson for appellants.

(1) The demurrer to the evidence should have been sustained for the reason that the only evidence of negligence was that plaintiff was ordered to break rock with a hammer that was "flat-faced," rather than "egg-shaped" or "round-faced." The testimony that flat-faced hammers are more dangerous for breaking rock than round-faced hammers is against physical law and fact. Courts are not obliged to stultify themselves by accepting as true testimony which is inherently unbelievable or which runs counter to common observation and experience. Sager v. Samson Min Co., 178 Mo.App. 503, 162 S.W. 762; Cadwell v. Wilson Stone & Mfg. Co., 238 S.W. 415; Maxwell v. Kansas City, 227 Mo.App. 234, 52 S.W.2d 487; Daniels v. K. C. Elevated Ry. Co., 177 Mo.App. 280, 164 S.W. 154; Scroggins v. Met. St. Ry. Co., 138 Mo.App. 215, 120 S.W. 731; Sexton v. Met. St. Ry., 245 Mo. 254, 149 S.W. 21; Weltmer v. Bishop, 171 Mo. 116, 71 S.W. 169; Giles v. Railroad Co., 169 Mo.App. 32, 154 S.W. 852; Kibble v. Ry. Co., 285 Mo. 603, 227 S.W. 46; Highfill v. Wells, 16 S.W.2d 100; Tate v. Mo. Pac. Ry., 93 S.W.2d 873. (2) Plaintiff's testimony as to the alleged unsafety of the tool used by him, if of any probative force whatever, which it is not, goes no farther than to show that round-faced hammers are safer than flat-faced hammers. The demurrer to the evidence should therefore have been sustained because the law does not require a master to furnish the newest or best tools, it being sufficient that he furnish those of reasonable safety, even though safer tools are made. Pevesdorf v. Union E. L. & P. Co., 333 Mo. 1155, 64 S.W.2d 939; Schaum v. Southwestern Bell Tel. Co., 336 Mo. 228, 78 S.W.2d 439; Williams v. Term. Railroad Assn., 98 S.W.2d 656; Coin v. Talge Lounge Co., 222 Mo. 488, 121 S.W. 1; Chrismer v. Bell Tel. Co., 194 Mo. 189, 92 S.W. 378. The evidence showed that plaintiff and his witnesses used the expressions "flat-faced" and "round-faced" in a relative rather than an absolute sense. There was no evidence as to the degree of roundness or convexity necessary to measure up to the respondent's assumed standard of reasonable safety. The verdict was therefore based on mere speculation and conjecture. Ilgenfritz v. Mo. P. & L. Co., 101 S.W.2d 727. (3) Instruction 1, given on behalf of the plaintiff, was erroneous because it failed to state the specific ground of negligence on which the case was submitted to the jury. It gave the jury a roving commission to find that the hammer used was defective or unsafe in any respect which suggested itself to their minds. An instruction cannot be broader than the pleadings or the evidence. Degonia v. Ry. Co., 224 Mo. 564, 123 S.W. 807; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Gandy v. St. L.-S. F. Ry. Co., 329 Mo. 459, 44 S.W.2d 634; Pevesdorf v. Union E. L. & P. Co., 64 S.W.2d 947. (4) Instruction 2, given on behalf of the plaintiff, erroneously states that in determining whether the hammer used by the plaintiff was a reasonably safe tool for breaking rock, usage is a defense and that the burden of proving such usage is on the defendants and that plaintiff must have known of such usage in order to be bound thereby. A master is bound to furnish his servants reasonably safe tools, and the test of reasonable safety is the common and ordinary usage of the trade. This is not a defense to the use of an unsafe tool, but the test of whether the tool is safe and knowledge or ignorance of the servant as to the usage is irrelevant.

Rex McPherson, Harold T. Lincoln, Frank B. Williams and William R. Collinson for respondent.

(1) Plaintiff's Instruction 1 incorporates by reference other instructions definitely limiting the jury to one specific ground upon which to find that the hammer was unsafe and instructing the jury on common usage as a test of reasonable care. Instructions incorporated by specific reference must be read in connection with the principal instruction. Nephler v. Woodward, 200 Mo. 179, 98 S.W. 488; Deschner v. Ry. Co., 200 Mo. 310, 98 S.W. 737; Meyers v. C. B. & Q., 296 Mo. 239, 246 S.W. 257, certiorari denied, 261 U.S. 624; Fowlkes v. Fleming, 17 S.W.2d 511; Bales v. K. C. Pub. Serv. Co., 332 Mo. 356, 59 S.W.2d 665; McDonald v. K. C. Gas Co., 332 Mo. 356, 59 S.W.2d 37; Larey v. M., K. & T. Ry. Co., 333 Mo. 949, 64 S.W.2d 681; Mitchell v. Wabash Ry. Co., 334 Mo. 926, 69 S.W.2d 286; Jenkins v. Mo. State Life, 334 Mo. 941, 69 S.W.2d 666; Null v. Stewart, 78 S.W.2d 75; Hoelzel v. C., R. I. & P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126. (2) There was no error in plaintiff's Instruction 2. This instruction correctly informed the jury that if the hammer was a dangerous tool, that a custom or usage to use such a tool would not excuse the defendant, if the plaintiff was inexperienced, knew nothing of the custom, usage or dangerous propensities of the hammer, and if the defendant, knowing plaintiff's ignorance, failed to warn him. Enloe v. Car & Foundry Co., 240 Mo. 443, 144 S.W. 852; Greenstein v. C. & S. Arch. I. & F. Co., 178 S.W. 1179; Kennedy v. Gas Light Co., 215 Mo. 688, 115 S.W. 407. (3) The court did not err in permitting Dr. Hoffman to give his opinion as to the cause of plaintiff's blindness. A medical expert may give his opinion either from facts within his own knowledge and observation, or from hypothetical facts, or from the two combined. Stewart v. Amer. Ry. Exp., 18 S.W.2d 520; Hamilton v. Standard Oil, 19 S.W.2d 679; DeDonato v. Wells, 328 Mo. 448, 41 S.W.2d 184; Schoenkerr v. Stoughton, 336 Mo. 290, 78 S.W.2d 84. The fact that an expert witness refers to facts postulated in a hypothetical question as "history" does not destroy the competency of his testimony if he is testifying from the facts in the question and his personal knowledge.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This case, recently reassigned to the writer, is an action for damages for personal injuries. Plaintiff had a verdict for $ 10,000 and defendants have appealed from the judgment.

Plaintiff upon a former trial, had judgment for $ 5000, which was reversed and remanded by the Springfield Court of Appeals. [Choate v. City of Springfield, 74 S.W.2d 869.] Reference is made to that opinion for the pleadings and discussion of the evidence on the first trial. It is contended here again that defendants were entitled to a directed verdict and that the Court of Appeals' decision was wrong in holding plaintiff made a jury case. Plaintiff's theory of negligence was that defendants furnished him an improper and unsafe tool (a flat-faced hammer intended for use in striking stakes, drills or chisels) for breaking rock, which he was ordered to do and attempted to do for the first time without knowledge (that the hammer furnished him was not a rock hammer) or experience as to the proper tools to be used. Defendants contend that plaintiff's evidence fails to show any negligence, because it goes no further than to show that a safer tool (than that furnished) is made, but fails to show that the tool furnished was not reasonably safe for the use intended.

Plaintiff testified that he was employed as a truck driver and had never broken rock before, but that on the day of his injury his foreman pointed to a hammer and said: "Take that hammer and help the boys break some rock." He said it "was the only hammer there;" that it was "flat-faced;" that "both ends were flat;" and that while he was using it on a rock "about all a man could lift (in size) a piece of it flew up and hit (him) in the right eye." Various types of hammers were exhibited and demonstrated before the jury. The hammer actually used by plaintiff was produced by defendants at the first trial but had been lost prior to the last trial.

Plaintiff had a number of witnesses who testified concerning the kind of hammers used for breaking rock and the effect produced by the use of various types of hammers. This testimony was, in part, as follows:

(Cope): "In breaking rock with a square flat-faced hammer spalls fly from it in every direction, up and down and every way, on account of its being flat. A regular rock hammer which is adapted to the use of breaking rock is round, ball-shaped. The round-faced hammer kind of sands the rock. The bulge of the hammer throws the spalls out. With a round-faced hammer, all the face of the hammer does not hit the rock when it is struck, the part that is outside of the center is not in contact with the rock. There is a space on the outer edge of the face of a round-faced hammer, between the point where the rock is hit by the hammer and the outer edge of the hammer. If spalls fly they have a tendency to go down and out. There is nothing on a flat-faced hammer to keep the spalls from flying up and into the face of the man using the hammer.

(Davis): "A rock hammer should have a round face, slightly oval -- just so it is not absolutely flat. . . . It doesn't make any difference whether both sides are alike, . . . or whether one comes up in a wedge shape. . . . The wedge shape business on the back is used to split rock with."

(Reynard): "Striking a rock with that hammer (type produced by defendants) causes spalls to fly -- more spalls to fly than a regular rock hammer, because it has a flat face. . . . The round face keeps them from flying up."

(Hawley) "A striking hammer is . . . used for striking drills or chisels. That is what it is made for. It has a...