Dowling v. Gerard B. Allen & Co.

• Decision Date: 31 October 1885
• Citation: 88 Mo. 293
• Parties: DOWLING v. GERARD B. ALLEN & CO., Appellants.
• Court: Missouri Supreme Court

88 Mo. 293

DOWLING

v.GERARD B. ALLEN & CO., Appellants.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

REVERSED.

Broadhead & Haeussler and Alexander Martin for appellants.

[1] The testimony is not sufficient to support the verdict. [2] The instructions given for plaintiff were wrong; they left the question of negligence to the jury. Negligence is a question of law for the court and the latter must state some rule as to what constitutes negligence, and the province of the jury is to ascertain whether the facts of the case on trial bring it within the rule. Goodwin v. Ry., 75 Mo. 74; Yarnall v. Ry., 75 Mo. 583; Wyatt v. Ry., 62 Mo. 411; Tarwater v. Ry., 42 Mo. 196. [3] The third instruction for plaintiff was wrong, because by it the jury was told that King was not the fellow servant of plaintiff, if plaintiff was told by Fisher, the foreman of the shop, to go with King and do whatever he directed. Lee v. Iron Works, 62 Mo. 567; Marshall v. Schricker, 63 Mo. 308; Brothers v. Cartter, 52 Mo. 372; McGowan v. Ry., 61 Mo. 528; Daubert v. Pickel, 4 Mo. App. 371; Hoke v. Ry., 11 Mo. App. 579; Valley v. Ry., 85 Ill. 50; 53 Ill. 336. [4] The motion in arrest of judgment should have been sustained. [5] The plaintiff was not entitled to a change of venue, and the lower court erred in refusing to permit defendant to introduce evidence to show that the facts alleged in the petition for the change of venue were not true. Besides, it does not appear that reasonable notice of the application was given; in fact, there is no evidence that any notice was given, as required by Revised Statutes, section 3733.

Fisher & Rowell for respondent.

[1] The evidence is sufficient to support the verdict. [2] The first instruction given for plaintiff was in proper form. Coombs v. Cordage Co., 102 Mass. 572; Buesching v. St. Louis Gas Light Co., 73 Mo. 219; Bell v. Ry., 72 Mo. 50. [3] The third instruction for plaintiff was designed to explain to the jury the relation between the plaintiff and the defendant's employe, named King, and properly declares the law. The question of negligence was rightly left to the jury. Mauerman v. Siemerts, 71 Mo. 101; Norton v. Ittner, 56 Mo. 352; Wyatt v. Ry., 55 Mo. 485; Bell v. Ry., 72 Mo. 50. [4] There could be more than one alter ego in an establishment of the magnitude of that of defendant. Hall v. Ry., 74 Mo. 298; Blessing v. Ry., 77 Mo. 410; McGowan v. Ry., 61 Mo. 528. [5] The lower court did not err in overruling the motion in arrest of judgment. [6] The change of venue was properly granted. The affidavit was conclusive on the question of the prejudice of the inhabitants of the city. Corpenny v. Sedalia, 57 Mo. 91; Mix v. Kepner, 81 Mo. 93. [7] Reasonable notice of the application is all that was required. Reed v. State, 11 Mo. 379; State v. Floyd, 18 Mo. 349; Perry v. Roberts, 17 Mo. 36; Corpenny v. Sedalia, 57 Mo. 88. [8] Voluntary appearance of the party after the change of venue waives any defect in the proceedings for change. Powers v. Brawder, Adm'r, 13 Mo. 154; Montgomery v. Scott, 32 Wis. 249; Blackburn v. Sweet, 38 Wis. 578; Carpenter et al. v. Shepherdson, 43 Wis. 406; In re Shœffer's Estate, 45 Wis. 614; Burnham v. Halfield, 5 Black. (Ind.) 21; Oowens v. Owens, Hard. (Ky.) 154; Russell v. Knowles, 5 Miss. 90.

HENRY, C. J.

This cause was here, on appeal, at the October term, 1881, and the judgment of the court of appeals, reversing that of the circuit court, was affirmed. On a re-trial of the cause, plaintiff obtained a judgment for ten thousand dollars, from which this appeal is prosecuted. The case is reported in 74 Mo. 14, and we adopt the statement there made, as substantially correct, except that on a re-trial of the cause, defendant introduced evidence contradictory of material testimony adduced by the plaintiff. Plaintiff testified that King directed him to “go and stop off the engine.” King testified that he had no recollection of giving plaintiff an order, or direction; that, “when the noon bell rang, work dropped; the noon bell itself would be an order for stopping the engine; plaintiff had started and stopped the engine before this, probably one hundred times; the bell rang and he went to the engine, of course.” Robert Cook testified, that when the noon bell rang, he was talking to King; knew of no order to the plaintiff to shut off steam. Had seen the plaintiff shut off steam a number of times before.

The testimony on both sides was to the effect that there were other pass-ways than that taken by plaintiff to the place where he had to go to shut off steam. Neither plaintiff nor any other witness testified that he was directed by King to go the route that took him over the set screw.

Among other instructions the court, at plaintiff's instance, gave the following:

“The court instructs the jury that if they find from the evidence that the employe of the defendant, named King, had charge or management of that part of defendant's work embracing the construction of the turn-table, and the machinery used in such construction, and that the plaintiff who was injured was directed by the foreman, Fisher, to go with said King and do whatever he directed, then said King was not the fellow servant of said plaintiff, and the defendant is responsible for his acts, and if the jury find from the evidence that, under the circumstances of this case, it was negligence or recklessness for said King to direct the plaintiff to perform the work in the manner he did, when he received the injury, the defendant will be responsible therefor.”

This clearly assumes that King not only directed the plaintiff to shut off the steam, but to do it in the manner in which he did it when he received the injury. It does not tell the jury that if * * * they found the fact to be, that King directed the plaintiff to shut off the steam, in the manner in which plaintiff did it, and also find that, under the circumstances of this case, it was negligence or recklessness so to direct plaintiff, the plaintiff was entitled to a verdict. And even in that form, unobjectionable, if there was evidence to support the hypothetical facts, it would have been error, for there is not a scintilla of testimony proving, or tending to prove, that King directed the plaintiff to take the route that led over the set screw.

The other instructions for plaintiff are objected to as submitting the question of negligence to the jury, generally, without any declaration of what fact constituted negligence; and also that they assumed that plaintiff was not of an age to be aware of the danger from the set screw and collar. As to the latter contention, we do not think that there is any such assumption as alleged.

By the second instruction the jury are told that “although they may find, from the evidence, that the set screw and collar attached to the shaft were visible, and the danger in passing over the same was apparent to a person of mature years, or one accustomed to the use of such machinery, yet if the jury further find that by reason of the youth and inexperience of plaintiff, he was not aware of the danger to himself from said set screw and collar, the fact that they were so visible or apparent will not defeat his right to recover in this case.”

The obvious meaning of the instruction is, that the jury were to find as a fact, first, the age of plaintiff; and, second, that he was too young and inexperienced to be aware of the danger to which he was exposed. There is no assumption of either of these propositions. How old plaintiff was, and whether old enough to be aware of the danger to which he was exposed were submitted to the jury as questions of fact by the instruction. The first instruction declared that, “if the danger was not apparent to a party of the age and experience of plaintiff, and that he did not have sufficient, or reasonable notice of such danger, and without any negligence on his part, by reason of his youth, or inexperience, * * * he failed to appreciate the danger,” etc. His age and intelligence were matters of enquiry--evidence was introduced in relation to both--and no jury of sensible men could have understood the court as declaring by that instruction that, by reason of defendant's youth and inexperience, he did not, or could not, appreciate the danger in passing over the shaft, but must have understood that these were questions submitted to them for their determination on the evidence.

The instructions for plaintiff were sufficiently specific in regard to what constitutes negligence of the character complained of, and which the testimony tended to prove. We think the fourth instruction objectionable. It declares that, “Although the jury may find, from the evidence, that the plaintiff was guilty of some negligence at the time of the injury, yet if they find that such negligence was slight or remote, and that the negligence of defendant was the direct cause of the injury to plaintiff, he will not be precluded from recovery by reason of such slight or remote negligence.” Putting out of view the question of plaintiff's age and inexperience, and considering him as an adult, if guilty of any negligence contributing directly to...