Cole v. Uhlmann Grain Co.

• Decision Date: 05 January 1937
• Docket Number: 33904
• Parties: John F. Cole v. Uhlmann Grain Company, Appellant
• Court: Missouri Supreme Court

100 S.W.2d 311

340 Mo. 277

John F. Cole v. Uhlmann Grain Company, Appellant

No. 33904

Supreme Court of Missouri

January 5, 1937

Appeal from Jackson Circuit Court; Hon. Darius A. Brown Judge.

Affirmed (upon condition).

Lathrop Crane, Reynolds, Sawyer & Mersereau, Winston H. Woodson and Horace F. Blackwell, Jr., for appellant.

(1) The court erred in refusing to give defendant's Instruction marked C in the nature of a demurrer to the evidence offered at the close of all the evidence, and further erred in submitting the case to the jury, because plaintiff did not prove that defendant's negligence, if any, caused the explosion. Fuchs v. St. Louis, 167 Mo. 645, 67 S.W 610; Beebe v. Transit Co., 206 Mo. 444, 103 S.W. 1019; Kimberling v. Wab. Ry. Co., 85 S.W.2d 736; Coble v. Ry. Co., 38 S.W.2d 1036; Grindstaff v. Goldberg & Sons Steel Co., 328 Mo. 80, 40 S.W.2d 702; McGrath v. St. L. Transit Co., 197 Mo. 105; Strother v. C., B. & Q. Ry. Co., 188 S.W. 1105. (2) The court erred in overruling defendant's motion to discharge the jury on account of plaintiff's attorney in one of his questions in the cross-examination of witness Manning, telling the jury how another jury ruled in another personal injury case growing out of the same explosion. Bishop v. Brittain Inv. Co., 229 Mo. 734, 129 S.W. 668; Evans v. Trenton, 112 Mo. 404, 20 S.W. 614; Busch v. Railroad Co., 322 Mo. 479, 17 S.W.2d 337; Smith v. K. C. Rys. Co., 204 S.W. 577; Messerli v. Bantrup, 235 S.W. 487; Chowning v. Parker, 104 Mo.App. 676; Crahan v. Balmer's Executor, 7 Mo.App. 585; Dow v. Town of Weare, 44 A. 489, 68 N.H. 345; Illinois Cent. Railroad Co. v. Jolley, 84 S.W. 330, 119 Ky. 452; Elliott v. Luengene, 44 N.Y.S. 776. (3) The court erred in permitting plaintiff's counsel to show that the Globe Indemnity Company was interested in the defense of this case and further erred in admitting the wholly immaterial testimony of Frank Barry, a representative of that company. Rytersky v. O'Brine, 335 Mo. 28, 70 S.W.2d 538; Whitman v. Carver, 88 S.W.2d 889; Allen v. Wilkerson, 87 S.W.2d 1064. (4) The case should be reversed and remanded because of the court's prejudicial attitude and remarks and prejudicial comments on the evidence. Rose v. Kansas City, 125 Mo.App. 237; Landers v. Railroad Co., 134 Mo.App. 89; McElwain v. Dunham, 221 S.W. 774; Dreyfus v. Railroad Co., 124 Mo.App. 594; Hutchinson v. Safety Gate Co., 247 Mo. 112; Wair v. Am. Car & Foundry Co., 285 S.W. 158. (5) The court erred in limiting defendant's counsel in cross-examining plaintiff's witness Johann in regard to his oral testimony at the trial of this case and the testimony of the witness given in his deposition and at a former trial. Dempsey v. Horton, 84 S.W.2d 625. (6) The court erred in refusing to permit defendant's expert witness Ahlskog to answer hypothetical questions and to explain the reasons for his answers. Frost v. Cent. Business Men's Assn., 246 S.W. 632; New Y. Life Ins. Co. v. Doerksen, 75 F.2d 102; City of Port Washington v. Thacher, 245 F. 97. (7) The court erred in giving plaintiff's Instruction 3 for the following reasons: (a) It broadens the issues and the charges of negligence alleged in plaintiff's petition and submits to the jury a specification of negligence not pleaded. Lauff v. Kennard & Sons Carpet Co., 186 Mo.App. 123, 171 S.W. 989; McGrath v. St. L. Transit Co., 197 Mo. 97. (b) It is not supported by the evidence. Cases under point (1). (8) The court erred in refusing to give defendant's Instruction marked G. Wilson v. Chattin, 335 Mo. 35, 72 S.W.2d 1001. (9) The court erred in excluding and refusing to admit competent and legal evidence offered by defendant. Cole v. Empire District El. Co., 331 Mo. 833, 55 S.W.2d 434; O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55; Kimmie v. Term. Railroad Assn., 334 Mo. 605, 66 S.W.2d 561. (10) The verdict is grossly excessive. Frese v. Wells, 40 S.W.2d 655; Truesdale v. Wheelock, 335 Mo. 924, 74 S.W.2d 585; Midway Bank & Trust Co. v. Davis, 288 Mo. 586, 233 S.W. 406.

Clif Langsdale and Roy W. Rucker for respondent.

(1) The court properly refused to give defendant's Instruction marked C in the nature of a demurrer to the evidence, and properly submitted this case to the jury. Stewart v. Laclede Gaslight Co., 241 S.W. 912; Lynch v. Railroad Co., 106 S.W. 68; McAllister v. Ry. Co., 25 S.W.2d 797; Stolle v. Anheuser-Busch, 271 S.W. 497; Reicke v. Anheuser-Busch, 227 S.W. 631; Kapros v. Pierce Oil Co., 25 S.W.2d 780. (2) No error was committed by the trial court in overruling defendant's motion to discharge the jury. The action complained of was entirely within the discretion of the trial court, and that discretion was not abused. McCarthy v. St. L. Transit Co., 192 Mo. 401; Gettys v. Am. Car & Foundry Co., 322 Mo. 787, 16 S.W.2d 89; Kamer v. Railroad Co., 326 Mo. 792, 32 S.W.2d 1084; Plannett v. McFall, 284 S.W. 854; Cashion v. Wells, 35 S.W.2d 909; Young v. St. Joseph, 4 S.W.2d 1104; Connole v. Railroad Co., 21 S.W.2d 911. (3) There was no effort upon the part of the plaintiff's counsel to show that the Globe Indemnity Company was interested in the defense of this case. (4) The court did not have a prejudicial attitude toward defendant, and made no remarks or comments that were prejudicial to the defendant's cause. The defendant did not so claim in its motion for new trial and is therefore barred from asserting such error here. Gardner v. Met. St. Ry., 122 S.W. 1074; Harris v. Powell, 56 Mo.App. 26; Ashley v. Elsberry, 85 S.W. 957. (5) The court committed no error in limiting defendant's counsel in cross-examining plaintiff's witness Johann. The extent of cross-examination is within the trial court's discretion. Daudt v. Steiert, 205 S.W. 225; Murphy v. Bank, 49 S.W.2d 670; State v. Ryland, 324 Mo. 714, 25 S.W.2d 109; State v. Loahmann, 58 S.W.2d 311. The questions were argumentative, and no foundation was laid therefor. State v. Richards, 334 Mo. 485, 67 S.W.2d 61; State v. Clough, 327 Mo. 700, 38 S.W.2d 39; Dietderick v. Metal Co., 222 Mo.App. 740, 9 S.W.2d 827. (6) The court committed no error in refusing to permit defendant's expert witness Ahlskog to answer questions propounded to him. (7) The court did not err in giving plaintiff's Instruction 3. (a) That instruction did not broaden the issues. Thompson v. Keyes Marshall Bros. Livery Co., 113 S.W. 1129; Roscoe v. Met. St. Ry. Co., 101 S.W. 34; Orcutt v. Century Bldg. Co., 99 S.W. 1062; Pointer v. Construction Co., 189 S.W. 809; Cull v. McMillan Contracting Co., 178 S.W. 868; Crupe v. Spicuzza, 86 S.W.2d 349; MacDonald v. Met. St. Rys. Co., 118 S.W. 78; Stauffer v. Met. St. Rys. Co., 147 S.W. 1032; Kean v. Smith-Reis Piano Co., 227 S.W. 1091; Knox v. Ry. Co., 203 S.W. 228; Glasco Elec. Co. v. Union E. L. & P. Co., 61 S.W.2d 955. (b) The issues presented by plaintiff's Instruction 3 were abundantly supported by the evidence which is set out in point (1). (8) The court properly refused to give defendant's Instruction G, which was intended to be an accident instruction. (a) This was not a case where an accident instruction would have been applicable. Wilson v. Chattin, 72 S.W.2d 1001; Hogan v. K. C. Pub. Serv. Co., 19 S.W.2d 707; Maloney v. United Rys., 237 S.W. 515. (b) The instruction was properly refused because of its erroneous definition of the word "accident." Kaley v. Huntley, 63 S.W.2d 25. (c) Other instructions requested by the defendant and given by the court were based upon the defendant's theory that the cause of the explosion was unknown. (9) The court properly excluded the evidence offered by the defendant, of which complaint is here made. The questions asked in some instances called for speculation and guesswork on the part of the witnesses and in other instances the questions called for answers that were clearly an invasion of the province of the jury. (10) The verdict was not excessive. Bond v. Ry. Co., 288 S.W. 777; Simmons v. K. C. Jockey Club, 66 S.W.2d 119; Pulliam v. Wheelock, 3 S.W.2d 374; Rose v. Telegraph Co., 43 S.W.2d 562; Span v. Jackson-Walker Coal Co., 16 S.W.2d 190; Meeker v. Union E. L. & P. Co., 216 S.W. 923; Martin v. Railroad Co., 46 S.W.2d 149; Vitale v. Duerbeck, 92 S.W.2d 691.

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

OPINION

HYDE

This is an action for damages for personal injuries. Plaintiff obtained a verdict for $ 35,000. From the judgment entered thereon defendant has appealed.

While working near defendant's grain elevator in North Kansas City, plaintiff was struck by a steel window frame, blown out by a grain explosion therein. His petition alleged general negligence, but plaintiff's evidence tended to show specific negligence in allowing an unusual and dangerous accumulation of dust to remain in the elevator, and in permitting a condition, in one section of the elevator, whereby a bucket continued to strike against the metal casing in which it moved so as to make sparks which would ignite grain dust and cause it to explode. The case was submitted on that theory.

The explosion occurred in the part of one building of the elevator known as leg No. 4. Defendant's description of the elevator and methods used (conceded to be correct), is as follows:

An elevator leg is the part of the elevator which elevates the grain. There were three elevator legs in this building -- No 4, No. 5 and No. 6, exactly alike except as to capacity. The grain is elevated by metal buckets, attached to an endless belt by flat headed bolts. This belt revolves on two pulleys, one located in the basement and the other the power pulley, located in the top of the building. The power pulley is operated by a separate motor (one for each leg) which motor is located at the top of the leg. This belt, together with the pulleys, is fully enclosed in a metal casing except where it...