Doyle v. Missouri, Kansas & Texas Trust Co.
| Decision Date | 08 June 1897 |
| Parties | Doyle v. Missouri, Kansas & Texas Trust Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.
Affirmed.
Trimble & Braley and G. A. Vandeveer for appellant.
(1) There was no evidence to take the case to the jury. No negligence was proven against the defendant. The appliance in question was one which the plaintiff could have used with entire safety, had he but looked where he was going. There is not a scintilla of evidence in the record that it was not safe. But if it was negligent to use the scaffolding complained of by the plaintiff, he assented to its use by going to work upon it. The defects were obvious and he was bound to see them and take care against them. When these facts exist there can be no recovery. Fugler v Bothe, 117 Mo. 475; Steinhauser v. Spraul, 28 S.W. 620; 30 S.W. 102; Thomas v. Railroad, 109 Mo 187; Berning v. Medart, 56 Mo.App. 443; Watson v. Coal Company, 52 Mo.App. 366; Bohn v Railroad, 106 Mo. 429; Sullivan v. Mfg. Co., 113 Mass. 396; Moulton v. Gage, 138 Mass. 390; Stuart v. Railroad, 163 Mass. 391; Rush v. Railroad, 36 Kan. 129, 134; Railroad v. Drake, 53 Kan. 1; Naylor v. Railroad, 53 Wis. 661, 666. (2) Most of the witnesses were unqualified to testify what "the usual way of taking out scaffolding" was, from lack of experience, and the testimony was entirely immaterial because the appellant had the right to select its own method of doing business and a valid contract of employment was entered into by the parties in reference to that method. Bailey on Master's Liab., pp. 142 and 145; Rooney v. Cordage Co., 153 Mass. 161; Naylor v. Railroad, 53 Wis. 661. (3) The court below exceeded and abused its discretion in allowing plaintiff's counsel to lead the very willing and pliant witness, Devore, and to suggest to him the answers which they desired to receive. Greenleaf on Evidence, sec. 434. (4) The witness, Devore, was erroneously permitted to testify to the condition of the runway at the time of the accident, when the testimony shows that he was then in Kansas City, three or four miles away. (5) Whatever conversation passed between the plaintiff and the witness, Devore, at the time Devore told the plaintiff to go to work on top of the elevator, was entirely immaterial, and evidence in regard to it should have been excluded. Dunn v. Altman, 50 Mo.App. 231. (6) Devore was allowed to state what he had heard men working about the elevator say about the scaffolding on top, and that other employes than Doyle had refused to work there; he was permitted to narrate a conversation with one of them and to state the reason which the latter had given him for refusing to work on top. O'Neill v. Crain, 67 Mo. 250; Fougue v. Burgess, 71 Mo. 389. (7) The hypothetical questions were not based on the facts proven, and therefore defendant's objections to the testimony should have been sustained. Benjamin v. Railroad, 50 Mo.App. 602; Russ v. Railroad, 112 Mo. 45; Senn v. Railroad, 108 Mo. 142. (8) Plaintiff's instructions from 1 to 8 are erroneous and should have been refused, rather than given. Plaintiff's first instruction is wholly wrong, because it utterly ignores the issue of plaintiff's assumption of the risks apparent to his observation. Railroad v. Jagerman, 26 S.W. 591. Plaintiff's second permits a finding for the plaintiff, if the foreman failed to repair defects, or warn the plaintiff of his danger, when there is no charge in the petition of a duty or a neglect to so do. Bailey on Master's Liability, 166; Beach on Cont. Neg., secs. 362, 363, 368 to 372; Wormell v. Railroad, 79 Me. 397; Railroad v. Smithson, 45 Mich. 212. The plaintiff's third instruction is erroneous in that it is an abstract proposition of law, and does not apply to the facts of the case and should therefore have been refused. The fourth instruction presents a one-sided view of the obligations resting upon two parties sustaining the relation of master and servant. The fifth instruction is subject to the objection that the plaintiff had no right to quiet the suggestions of prudence within him by assuring himself that somebody else had taken greater precaution for his safety than he was willing to take on his own behalf. Ragon v. Railroad, 97 Mich. 265. The sixth instruction is viciously erroneous. It wholly ignores the duty of the plaintiff to use his eyes and see what was obvious. There were no latent defects in the runway. The plaintiff had no right to assume that it was constructed otherwise than it was, for its construction was necessarily obvious to everybody. The eighth instruction permits the jury to conjecture sufferings and damages of and to the plaintiff in the future. Railroad v. Tobriner, 147 U.S. 571; Ross v. Kansas City, 48 Mo.App. 440. (9) The defendant's first instruction properly declared the law and should have been given. (10) The court should have sustained the defendant's motion for a new trial because the opposing counsel went outside the record in his argument, misquoted the evidence and misrepresented the law, abused corporations generally, and sought to inflame the passions of the jury against the defendant.
Edward H. Stiles and Henry J. Latshaw, Jr., for respondent.
(1) The master was liable for the injury to his servant under the circumstances detailed in evidence. Sullivan v. Railroad, 107 Mo. 66; Stephens v. Railroad, 96 Mo. 212; Schroeder v. Railroad, 108 Mo. 322; Shortel v. St. Joseph, 104 Mo. 114; Keegan v. Kavanaugh, 62 Mo. 230. (2) "The question of contributory negligence is a mixed one of law and fact and should be determined by the jury under the guide of proper instructions in the light of all the attending circumstances." Fulks v. Railroad, 111 Mo. 335; Soeder v. Railroad, 100 Mo. 673; Mahaney v. Railroad, 108 Mo. 191; Roddy v. Railroad, 104 Mo. 234; O'Mellia v. Railroad, 115 Mo. 205; Maus v. Springfield, 101 Mo. 613; Easley v. Railroad, 113 Mo. 236. (3) Where the facts are either disputed, or are such that reasonable men might fairly differ upon the question whether there was negligence or not, the question of negligence should be submitted to the jury. Fusili v. Railroad, 45 Mo.App. 535; Lynch v. Railroad, 112 Mo. 420; Sandifer v. Lynn, 52 Mo.App. 553; O'Mellia v. Railroad, 115 Mo. 205; Gratiot v. Railroad, 116 Mo. 450; Dowell v. Guthrie, 116 Mo. 646. (4) "It is only when the facts are such that all reasonable men must draw the conclusion of negligence that the question of negligence is ever considered as one of law for the court." Dixon v. Railroad, 109 Mo. 413; O'Mellia v. Railroad, 115 Mo. 205; Bluedorn v. Railroad, 121 Mo. 258; Henry v. Railroad, 113 Mo. 525. (5) Whether plaintiff was guilty of contributory negligence in not exercising proper care to ascertain condition of car on which he was working is a question for the jury. Roddy v. Railroad, 104 Mo. 234; Seymour v. Railroad, 114 Mo. 266; Barr v. Kansas City, 105 Mo. 550. Whether risk is obvious is question of fact. Moore v. Mill Co., 55 Mo.App. 491. (6) When servant assumes position of danger in obedience to the order of the master and sustains injury on account of insufficient appliances, his knowledge of the danger of the position assumed by him will not constitute contributory negligence unless the danger was so glaring that even a servant in a position of subordination would have refused to enter into it. Schroeder v. Railroad, 108 Mo. 322; Stephens v. Railroad, 96 Mo. 212; Shortel v. City of St. Joseph, 104 Mo. 114. And the question is for the jury. Keegan v. Kavanaugh, 62 Mo. 230; Railroad v. Stout, 17 Wall. 657; Miller v. Railroad, 12 F. 600; Franklin v. Railroad, 37 Minn. 409; Railroad v. Fitzpatrick, 31 Ohio St. 479; Rummell v. Dilworth, 111 Pa. St. 343; Rabl v. Railroad, 35 Minn. 84; Nadan v. White, etc., Co., 43 N.W. 1137. (7) In conclusion on this point we may add that defendant by introducing evidence after the overruling of its demurrer to plaintiff's evidence, instead of standing thereon, waived the right to insist that the ruling of the court thereon was erroneous. Hilz v. Railroad, 101 Mo. 36; Jennings v. Railroad, 112 Mo. 268. (8) The next and only other material complaint is that the instructions were wrong. But when the instructions are considered as a whole, they, beyond any question, correctly embody the law of the case. (9) It is first claimed that the admission of testimony tending to show that the customary and usual mode and the one in general use in removing the scaffoldings from elevators, was to leave the top scaffolding on the bins until the lower scaffoldings had been removed, was erroneous, that the witnesses were not sufficiently expert, etc. The only objection made to this testimony was that it was incompetent, irrelevant and immaterial. This objection is too indefinite, not specific enough. Masonic Mutual Society v. Lackland, 97 Mo. 140; Margrave v. Ausmuss, 51 Mo. 561; Clark v. People's, etc., Co., 46 Mo.App. 248. It is clearly competent to show, as a circumstance, what the usual and customary way of doing a thing is. But an absolutely complete answer to the point made is, that the court, by a specific instruction, number 7, asked by defendant, ruled out all of this testimony, and instructed the jury not to consider the same in arriving at their verdict. This cured any possible error which might have resulted from the testimony. Stephens v. Railroad, 96 Mo. 207; Allen v. City, 61 Mo.App. 270.
This is an action for damages for personal injuries sustained by plaintiff, the result of a fall received by him while in the service of defendant as a laborer, in consequence of the alleged defective construction of a scaffold or runway over...
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