Dees v. Skrainka Const. Co.

• Decision Date: 20 July 1928
• Docket Number: 27111
• Parties: William Dees v. Skrainka Construction Company, Appellant
• Court: Missouri Supreme Court

8 S.W.2d 873

320 Mo. 839

William Dees v. Skrainka Construction Company, Appellant

No. 27111

Supreme Court of Missouri

July 20, 1928

Appeal from Circuit Court of City of St. Louis; Hon. H. A Hamilton, Judge.

Affirmed.

Fordyce Holliday & White for appellant.

(1) The court erred in permitting counsel for plaintiff, over objection and exception of the defendant, to indulge in prejudicial and inflammatory remarks in his opening statement, in that the court permitted counsel to assert that defendant's engineer had injured the feet of other persons in the same manner as the injury to plaintiff, which statement plaintiff made no effort whatever to prove at the trial. 2 Hyatt on Trials, pp. 1538 et seq.; People v Searcy, 121 Cal. 1; Egan v. Dotson, 36 S.D. 459. (3) The verdict is excessive even after the remittitur ordered by the trial court. Fitzsimmons v. Mo. Pac. Ry. Co., 294 Mo. 551; Lackey v. Ry. Co., 305 Mo. 260; Kibble v. Railroad Co., 227 S.W. 46; Jones v. Ry. Co., 287 Mo. 64; Farrar v. Railroad, 249 Mo. 227; Newcomb v. Railroad, 182 Mo. 727; Applegate v. Railroad, 252 Mo. 201; Lessenden v. Railroad, 238 Mo. 247. In determining the question of excessiveness the court should consider "incidents of the trial," naturally registering a result in swollen damages. Bragg v. Railroad, 192 Mo. 365; Applegate v. Railroad, 252 Mo. 201. The Supreme Court will set aside the verdict where it is palpably against the weight of the evidence, or clearly shows that the jury were influenced by passion and prejudice. Baker v. Stonebraker's Admrs., 36 Mo. 345; Whitsett v. Ransom, 79 Mo. 258; Spohn v. Railroad, 87 Mo. 74; Jones v. Ry. Co., 287 Mo. 64.

Mark D. Eagleton and Hensley, Allen & Marsalek for respondent.

(1) The court did not err in overruling defendant's objection and in refusing to discharge the jury, because of the statement of plaintiff's counsel that he expected to prove that the engineer on a prior occasion had run over another fireman's foot. (a) The fact counsel stated he expected to prove was competent under the petition. Grube v. Railroad, 98 Mo. 330; Master & Servant, 39 C. J. 1035. (b) The point now urged, that the statement constituted prejudicial error on the theory that no effort was made to prove it during the trial, was waived by defendant's failure to ask an instruction at the close of the evidence cautioning the jury not to consider it. Markow v. Chandelier Co., 190 S.W. 626; Lipperd v. Jeffries, 181 Mo.App. 126; Fullerton v. Fordyce, 144 Mo. 519; Maddox v. Dunklin, 163 Ala. 278; Chicago Railroad Co. v. Menely, 79 Ill.App. 679. (c) Objections of this character are addressed to the discretion of the trial court, which will not be reviewed except in case of manifest abuse. Brinkman v. Gottenstroeter, 153 Mo.App. 355; Bright v. Sammons, 214 S.W. 427; Linstroth v. Peper, 203 Mo.App. 290; Walters v. Lumber Co., 165 N.C. 388; 4 C. J. 810. (2) The judgment is not excessive. (a) The fact that the court required a remittitur of $ 8500 from the verdict of $ 17,500 awarded by the jury does not show that the jury were actuated by corrupt or improper motives or were swayed by bias or prejudice in reaching their verdict. Cook v. Globe Printing Co., 227 Mo. 471; Clifton v. Railroad, 232 Mo. 708; Moore v. Transit Co., 226 Mo. 689. (b) This court has twice approved judgments of $ 15,000 for the loss of a leg. Williams v. Fleming, 284 S.W. 794; Stahl v. Railroad, 287 S.W. 628. (c) The appellate court will not substitute its own opinion for that of the jury in the allowance of damages, but will interfere in such matters only when the award is so glaringly unauthorized by the evidence as to shock the judicial sense of right, or compel a conviction that the verdict was the result of prejudice, corruption, passion or bias. Manley v. Wells, 292 S.W. 69; Grott v. Shoe Co., 2 S.W.2d 785. (d) The award in this case is reasonable when compared with awards for injuries of similar character. Schlueter v. Railway, 296 S.W. 116; Spencer v. Railroad, 297 S.W. 357; Ernst v. Railway Co., 256 S.W. 222; Jordan v. Railroad, 308 Mo. 31.

Henwood, C. Higbee and Davis, CC., concur.

OPINION

HENWOOD

This is an action for damages, filed in the Circuit Court of the City of St. Louis, in which William Dees, as plaintiff, alleges the negligence of defendant as the cause of personal injuries suffered by him while employed by defendant. The trial resulted in a verdict and judgment for plaintiff in the sum of $ 17,500. The trial court held that the amount of damages awarded by the jury was excessive, but overruled the defendant's motion for a new trial upon the condition that plaintiff remit the sum of $ 8500. Such remittitur was made by plaintiff, and a new judgment entered in his favor for $ 9000. From that judgment, defendant prosecutes this appeal.

The evidence offered by the plaintiff shows that, at the time in question, plaintiff was forty-two years of age, and that he had been employed by defendant for about six weeks as fireman of one of defendant's concrete mixers, for wages in the sum of $ 25 per week. The concrete mixer was a heavy iron machine operated by steam, resting on four iron wheels, with flanges about six inches in width. It consisted of a fire-box, boiler, and other steam engine equipments, a mixer, a large iron bowl or pan, at the front end, by which the materials for the concrete were received at the ground and carried to the mixer, and an iron bucket or spreader, at the rear end, by which the concrete was taken from the mixer and poured at the place desired. The material bowl or pan was raised and lowered by means of hoisting apparatus connected with the engine, and the bucket or concrete spreader was moved about by means of its connection with a sliding device on an iron beam which extended outwardly from the rear of the machine. When the plaintiff was hurt, about eleven o'clock in the morning of May 15, 1924, this machine was being used by defendant in paving a public alley in the northwest section of the city of St. Louis. On this job, the concrete was poured over a space of sixteen feet between movements of the machine, and the machine was moved, for this purpose, on an average of once every hour. The machine was headed toward the east and its movements were made in that direction, on heavy boards which were laid in the form of tracks for its wheels. The water supply for the boiler and mixer was provided by a hose connection between the machine and a water plug located about 300 feet south and a little east of the machine. The hose attachment on the machine was on the left side, between the boiler and the mixer, and in front of and above the left rear wheel. Immediately prior to the movement of the machine which caused plaintiff's injuries, the hose extended from the water plug, at a point about 300 feet away, on the right or south side of the machine, around the back part of the machine, to its connection on the left or north side of the machine, and a slacked portion of the hose was on the ground in front of the left rear wheel. The plaintiff was hired to work for defendant by Martin Gavin, the engineer in charge of the operation of the concrete mixer, and was subject to his orders and directions. Plaintiff's duties consisted of firing the engine, keeping water in the boiler, moving and placing the boards for the left wheels of the machine, and handling the water hose on the left side of the machine. When the machine was moved, the hopper man (George Collins) handled the hose on the right or south side, and it was plaintiff's duty to pick up the hose on the left or north side, and carry it along as the machine moved and keep it from getting under the left rear wheel.

The plaintiff testified that the engineer told him to move the hose, and that, while he was in the act of doing so, the engineer started the machine immediately, without signal or warning to him, and thereby caused the left rear wheel of the machine to run over his right foot. In this connection, plaintiff said: "Well, he told me to move the hose. I was standing by the machine. I started to move it, and he started the engine, and caused my injuries. I had just gotten hold of the hose to move it, and as I got hold he started up, and I had to pull the hose out of the way of the wheel, and the concrete was on it, and that caused it to pull me right under the wheel, by him starting so quick. It jerked me right under and ran over my foot." On cross-examination, the plaintiff further said: "He looked under and told me to move the hose, and then he never give me no signal that he was going to move, and I thought he was waiting on me a minute or so to give me a chance to get the hose out of the way." The plaintiff further testified that, prior to this occurrence, the engineer would "sometimes" give him a warning before moving the machine and "sometimes" he would not; that, twice before this occasion, he complained to the engineer about starting the machine without giving any warning, and the engineer said he would give him "plenty of time to get out of the way." Referring to these complaints, on cross-examination, the plaintiff said he told the engineer "that he was reckless and that somebody was going to get hurt," but admitted that the engineer had never hurt anyone else, as far as he knew.

Ira Craig, formerly employed by defendant, as fireman, and as "boss of the loading pan," testified that, on numerous occasions, "sometimes twice a day," the engineer (Martin Gavin) started the machine without warning to the fireman, and without giving the fireman time to get the hose out of the way; and that, on numerous occasions, the engineer (Martin Gavin) hoisted the "loading pan" before he received the customary signal to do so, causing the men engaged in loading the pan...