Corby v. Missouri & K. Telephone Co.

• Decision Date: 12 November 1910
• Citation: 231 Mo. 417,132 S.W. 712
• Parties: CORBY v. MISSOURI & K. TELEPHONE CO.
• Court: Missouri Supreme Court

132 S.W. 712

231 Mo. 417

CORBY v. MISSOURI & K. TELEPHONE CO.

Supreme Court of Missouri.

November 12, 1910.

Rehearing Denied December 17, 1910.

1. MASTER AND SERVANT (§§ 101, 102)—MASTER'S LIABILITY FOR INJURIES TO SERVANT — PLACE FOR WORK — CARE REQUIRED BY MASTER—TELEPHONE COMPANY.

There is no exception to the rule requiring a master to furnish a reasonably safe place in which to labor in favor of telephone companies.

2. MASTER AND SERVANT (§§ 101, 102)—MASTER'S LIABILITY FOR INJURIES TO SERVANT —PLACES FOR WORK—KNOWLEDGE BY MASTER OF DEFECTS.

Where the servant's knowledge of danger is better than that of his master's, and his duties are dangerous, depending solely upon his care, the master is not liable for injuries sustained by the servant because of such dangers.

3. MASTER AND SERVANT (§ 107)—MASTER'S LIABILITY—PLACES FOR WORK—REPAIRS.

Where a servant is engaged to repair and make a place safe, and he is in control and has been engaged because of his superior knowledge, the master is not liable for injuries received, because of defects in the place provided for him to work.

4. MASTER AND SERVANT (§ 278)—MASTER'S LIABILITY — ACTIONS — SERVANT NOT VICE PRINCIPAL.

In an action by a lineman who was injured by the fall of a post which he climbed while in the master's service, evidence held to show that such servant was not in control of the work, but was under the direction of the foreman.

5. MASTER AND SERVANT (§ 190)—MASTER'S LIABILITY—PLACE TO WORK—INSTRUCTION OF COURT—DUTY TO MAKE.

Where a master has servants who are laboring under a foreman or vice principal of the master, it is the master's duty to make inspection to see that such servants have a safe place to work; thus, where a lineman was under a foreman and was tearing down defective poles, which the foreman inspected, the master was liable for injuries incurred by such lineman by the fall of a pole, through the failure of the foreman to properly inspect it.

6. MASTER AND SERVANT (§ 278)—MASTER'S LIABILITY—ACTIONS — EVIDENCE — CUSTOM WITH REGARD TO INSPECTION.

In an action by a lineman against a telephone company for injuries by the fall of a defective pole, evidence held to show no custom that the linemen were to do their own inspection of the poles, thereby relieving the master of those duties.

7. MASTER AND SERVANT (§ 234)—MASTER'S LIABILITY — CONTRIBUTORY NEGLIGENCE OF THE SERVANT—KNOWLEDGE OF DANGER.

A lineman can recover from a telephone company, which is his master, for injuries received because of the defective condition of a pole, unless it was of such a glaring character as to threaten imminent danger, even though the lineman knew that the pole was defective.

8. DAMAGES (§ 159) — PLEADING — LOSS OF EARNINGS—PETITION.

Where a petition sets out facts showing that the plaintiff has lost and will necessarily continue to lose his former earnings because of an injury, and then asks damages in specified amounts for personal injuries, and for doctor bills, etc., and closes with a prayer for a definite sum of damages, which is the sum of the personal injuries and doctor bills, damages may be recovered for loss of earning power.

9. APPEAL AND ERROR (§ 926)—EVIDENCE— PRESUMPTIONS.

In an action against a telephone company by a lineman for injuries sustained through the failing of a defective pole, the defendant's foreman was placed upon the witness stand, and gave testimony tending to fully support the theory of the defense. Plaintiff's counsel then made an offer of proof in the presence of the jury to show that defendant's foreman had said to the injured man shortly after the accident that, "if I was not in the employ of this company, I could show you how to help yourself." Held, that this offer of proof should be presumed on appeal to have been made for the proper purpose of discrediting the witness, and not for the purpose of prejudicing the jury.

10. APPEAL AND ERROR (§ 1047)—REVIEW— HARMLESS ERROR—OFFER OF PROOF IN THE PRESENCE OF THE JURY.

Where the trial court sustains the defendant's objection to an offer of proof made before the jury, and excludes the testimony, such an offer, if error, is harmless.

11. TRIAL (§ 260)—REFUSAL OF INSTRUCTIONS COVERED BY OTHERS.

It is not error for a trial court to refuse instructions requested, where they are covered by instructions already given.

12. DAMAGES (§ 132)—MEASURE OF DAMAGES —PERMANENT INJURIES—EXCESSIVE DAMAGES.

Where, an employé, through the negligence of the master, received an injury which broke the lower part of his spine and paralyzed him from the hips down, making him wholly dependent and helpless, besides destroying his health and vigor, $22,500 is not an excessive measure of damages.

Lamm, P. J., and Graves, J., dissenting.

In Banc. Appeal from Circuit Court, Clay County; Francis H. Trimble, Judge.

Action by Perry Eugene Corby against the Missouri & Kansas Telephone Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Gleed, Hunt, Palmer & Gleed, for appellant. Boyle, Guthrie, Howell & Smith (Joseph F. Brooks, of counsel), for respondent.

WOODSON, J.

This cause having been transferred to court in banc, upon the dissent of two of the judges, was there reargued, and after due consideration the opinion of WOODSON, J., hereto attached, handed down in Division No. 1, was adopted by the court as the opinion thereof.

The judgment is affirmed; VALLIANT, C. J., and GANTT and KENNISH, JJ., concurring, LAMM and GRAVES, JJ., dissenting, and BURGESS, J., not sitting.

Statement.

WOODSON, J.

This suit was begun by the plaintiff against the defendant in the circuit court of Jackson county, to recover $36,000 as damages for personal injuries sustained by him through the alleged negligence of the company while he was assisting in tearing down an old and rebuilding a new telephone plant in the city of Fort Scott, Kan., on the 5th day of December, 1905.

It is necessary, in order to understand some of the legal questions presented by this record, to set out the petition upon which the cause was tried. It reads as follows (formal parts omitted):

"Plaintiff says that the defendant is now, and was at all the times hereinafter complained of, a corporation duly organized and existing according to law, and engaged in the business of operating and maintaining a system of lines of telephone in the states of Missouri, Kansas, and elsewhere. As a part of its said system and lines it does now, and did at all the times herein complained of, operate telephone lines in the city of Fort Scott, in the state of Kansas. As a part of said system at Fort Scott, its telephone wires are and were at all the times herein complained of strung on wooden poles. On or about December 5, 1905, plaintiff was in the employ of the defendant in the capacity of a lineman, and in the performance of his duties as such lineman he was directed by defendant, and it was necessary as a part of his duties as such employé of defendant, to climb upon a wooden pole then being used, maintained, and controlled by and for the defendant for the purpose of performing certain work for the defendant thereon. While he was on said pole, and at a height thereon of about 20 feet from the ground, said pole broke and fell because of its rotten, weak, and defective condition, thereby causing plaintiff to fall to the ground and pavement below and inflicting upon him great and lasting injuries. As the result of said fall, his sacrum and coccyx were broken, fractured, bruised, and injured, and plaintiff was injured and bruised in all parts of his body, head, and limbs, and he received a severe shock and concussion to his spine, spinal cord, and brain, his abdominal walls were ruptured, bruised, and broken, and the organs of his body were wounded, shocked, and injured. As the result of said injuries plaintiff has suffered from dizziness, numbness, and vertigo, and he has permanently lost the control and use of his legs and the same have been paralyzed, and his organs refuse and will always refuse to perform their functions. His eyes were and will continue to be affected by said injuries, and his eyesight has been and will continue to be greatly impaired thereby. As the result of said injuries, plaintiff has suffered and will always continue to suffer great bodily pain and mental anguish, to his damage in the sum of thirty-five thousand ($35,000) dollars. As the result of said injuries, plaintiff has incurred and will incur great expenses for medicines, nursing, and medical attention in the sum of one thousand dollars ($1,000). Prior to said injuries plaintiff was about twenty-seven years of age and possessed of full strength and vigor, and prior to that time he was earning about three dollars per day, and but for such injuries would have continued to earn that amount or more than that amount. As the result of said injuries his ability to earn a livelihood has been lost or greatly impaired, and he has lost and will continue to lose his time from his work and his earnings as a result thereof. Plaintiff says that his injuries resulted directly from the negligence of the defendant in this, to wit, that the defendant negligently ordered the plaintiff to go upon said pole when defendant knew or by the exercise of due care should have known that said pole was rotten, weak, and defective as it was, in time, by the exercise of due care, to have repaired or replaced said pole before directing or permitting plaintiff to use the same in the performance of his duties, and defendant negligently failed to properly inspect said pole to ascertain its defective condition, and negligently failed to warn plaintiff that the same was as it was, rotten, weak, and defective. Wherefore, plaintiff prays judgment against said defendant in the sum of thirty-six thousand dollars ($36,000), and costs of suit."

The answer consisted, first, of a general denial; second, a plea of contributory negligence; and, third, a plea of assumption of risk...