Duvall v. Brooklyn Cooperage Co., No. 3745.

CourtMissouri Court of Appeals
Writing for the CourtBailey
Citation275 S.W. 586
PartiesDUVALL v. BROOKLYN COOPERAGE CO.
Decision Date01 September 1925
Docket NumberNo. 3745.
275 S.W. 586
DUVALL
v.
BROOKLYN COOPERAGE CO.
No. 3745.
Springfield Court of Appeals. Missouri.
September 1, 1925.
Rehearing Denied September 23, 1925.

[275 S.W. 587]

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by W. A. Duvall against the Brooklyn Cooperage Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

A. & J. F. Lee, Joseph Renard, and Arnot Sheppard, all of St. Louis, and J. C. Sheppard, of Poplar Bluff, for appellant.

Sam M. Phillips, of Poplar Bluff, for respondent.

BAILEY, J.


Action for personal injuries received by plaintiff while employed as a common laborer in piling log ends for defendant at its sawmill. The jury returned a $1,500 verdict, and defendant appeals.

Plaintiff charged in his petition that his duties required him to stack ends cut from wet slick logs at defendant's mill, which were of various sizes, ranging in weight from 75 to 300 pounds; that, "owing to the weight, size, and wet, slippery condition of said log ends, it was necessary for the reasonable safety of those so engaged for at least two able-bodied men to perform the work plaintiff was engaged in performing at the time of his injury"; that defendant negligently failed to furnish sufficient men, but ordered plaintiff to perform said work alone; that "plaintiff on said day in attempting to stack or pile said log ends as aforesaid attempted to lift a large, wet, slick log, and of the weight of about 200 pounds, upon a partially completed stack, and that in the effort so to do plaintiff had said log end in his hands and arms, and resting against his stomach, and that, when he tried to raise said log end on top of said stack, owing to its great weight and wet, slippery condition, it slipped from his hands and arms and against plaintiff's abdomen," as a result of which plaintiff suffered a permanent oblique inguinal rupture.

Defendant's answer, after a general denial, sets up the defenses of contributory negligence and assumed risk. Defendant has assigned a great number of errors, which we shall consider in order.

The first assignment relates to the admission of evidence. Plaintiff and the witness Williford were permitted to express their opinions as to how many men were necessary to handle the blocks with safety. Where the particular question is not a matter within the common knowledge of men,

275 S.W. 588

such testimony, from experts or experienced witnesses, is held to be admissible. Melly v. Railroad Co., 215 Mo. 567, 114 S. W. 1013.

In the case of Smith v. Creer (Mo. App.) 257 S. W. 829, it was held proper to ask plaintiff how many men were necessary to move a joist. We find no error on the admission of this evidence.

It is next assigned as error the admission of plaintiff's testimony that at the time he put the block upon the pile he thought be could do so without injuring himself. This was improper, as a conclusion of the witness. Unrein v. Oklahoma Hide Co., 295 Mo. 353, 244 S. W. 924.

The question is whether a reasonably prudent person would have had a right to believe he could perform the work as he did with safety, and it was for the jury to decide. We would not feel inclined, however, to reverse the case for that error alone.

We have examined other alleged errors on the admission of evidence, and find no material error therein, except in this respect: Any hypothetical questions to a doctor should not call for his opinion merely as to the possibility of an injury resulting from certain causes, but should require him to state if, in his opinion, such injuries would result from such causes to a reasonable degree of certainty. O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S. W. 55; Mahany v. Kansas City Ry. Co., 286 Mo. 601, 228 S. W. 821.

The learned trial judge, at plaintiff's request, gave the following instruction:

"The court instructs the jury that, if you find and believe from the evidence introduced in the trial of this cause that during the months of February or March, 1923, the plaintiff was an employee of defendant, and that on said date, in the scope of his employment as such, he was engaged in piling the log ends described in evidence, and if you further find and believe from the evidence that defendant's foreman negligently and carelessly ordered and directed plaintiff to perform the work of stacking said log ends alone and without assistance, and that such manner of doing said work was dangerous to plaintiff, and that plaintiff, in obedience to said order and command, if any, of said foreman, attempted to so pile said log ends alone and without assistance, and that in so doing, and while attempting to lift and place upon a pile the large, heavy, wet log end, if any, mentioned in evidence, that the same slipped in plaintiff's grasp, and from the edge of said pile, and came in violent contact with plaintiff's body, and as a result thereby plaintiff was then and there, and through no fault or negligence on his part, injured, if at, as described in evidence, then and in that event your verdict, will be for plaintiff."

Defendant assigns as error the giving of the foregoing instruction for the following reasons: (a) That it does not require the jury to find any of the facts predicated therein constituted negligence; (b) that it fails to define negligence; (c) because it is broader than the evidence; (d) because the instruction failed to require the jury to find the failure to furnish sufficient workmen was the proximate cause of the alleged injury; (e) because it assumes it was negligent to order respondent to do the work without assistance.

In support of the first proposition defendant cites the case of Zasemowich v. American Manufacturing Co. (Mo. Sup.) 213 S. W. 799. In referring to the...

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10 practice notes
  • State v. Evans, No. 10347
    • United States
    • Supreme Court of West Virginia
    • September 10, 1951
    ...Second Edition, page 2458; 20 Am.Jur., Evidence, Secs. 787, 788; 32 C.J.S., Evidence, § 551(b); Duvall v. Brooklyn Cooperage Co., Mo.App., 275 S.W. 586; Rogers on Expert Testimony, Third Edition, Sec. 137; Kime v. Owens, 191 Iowa, 323, 182 N.W. 398. In the case of Graves v. Katzen, 112 W.Va......
  • Hulsey v. Quarry & Construction Co., No. 28463.
    • United States
    • United States State Supreme Court of Missouri
    • September 4, 1930
    ...instruction in that respect is reversible error. Dunsmore v. Hartman, 256 S.W. 1031; Kassen v. Lusk, 277 Mo. 663; Duvall v. Cooperage Co., 275 S.W. 586. (a) Undue prominence and repetition in instructions constitute reversible error. Lund v. McClinton, 205 S.W. 241; Munsey v. Oil & Gas Co.,......
  • Keyes v. C.B. & Q. Railroad Co., No. 28471.
    • United States
    • United States State Supreme Court of Missouri
    • September 4, 1930
    ...Assn., 205 Mo. 638; Cytron v. Transit Co., 205 Mo. 692; Greer v. Parker, 85 Mo. 107; Turner v. Loler, 34 Mo. 461; Duvall v. Cooperage Co., 275 S.W. 586; Farmers Bank v. Trust Co., 203 S.W. 674; Albright v. Oil Co., 206 Mo. App. 412; Kennedy v. Klein, 19 Mo. App. 15. (b) The cases of Price v......
  • Corbin v. Kansas City, C. C. & St. J. Ry. Co., No. 17221.
    • United States
    • Missouri Court of Appeals
    • May 25, 1931
    ...150 Mo. 385, 401, 51 S. W. 682; Russell v. Bauer-Berger Grocery Co. (Mo. App.) 288 S. W. 985, 987; Duvall v. Cooperage Co. (Mo. App.) 275 S. W. 586, 589; Mather v. Railroad, 166 Mo. App. 142, 149, 148 S. W. 383. We have examined the case of Yoakum v. A., T. & S. Fe Railroad (Mo. App.) 199 4......
  • Request a trial to view additional results
10 cases
  • State v. Evans, No. 10347
    • United States
    • Supreme Court of West Virginia
    • September 10, 1951
    ...Second Edition, page 2458; 20 Am.Jur., Evidence, Secs. 787, 788; 32 C.J.S., Evidence, § 551(b); Duvall v. Brooklyn Cooperage Co., Mo.App., 275 S.W. 586; Rogers on Expert Testimony, Third Edition, Sec. 137; Kime v. Owens, 191 Iowa, 323, 182 N.W. 398. In the case of Graves v. Katzen, 112 W.Va......
  • Hulsey v. Quarry & Construction Co., No. 28463.
    • United States
    • United States State Supreme Court of Missouri
    • September 4, 1930
    ...instruction in that respect is reversible error. Dunsmore v. Hartman, 256 S.W. 1031; Kassen v. Lusk, 277 Mo. 663; Duvall v. Cooperage Co., 275 S.W. 586. (a) Undue prominence and repetition in instructions constitute reversible error. Lund v. McClinton, 205 S.W. 241; Munsey v. Oil & Gas Co.,......
  • Keyes v. C.B. & Q. Railroad Co., No. 28471.
    • United States
    • United States State Supreme Court of Missouri
    • September 4, 1930
    ...Assn., 205 Mo. 638; Cytron v. Transit Co., 205 Mo. 692; Greer v. Parker, 85 Mo. 107; Turner v. Loler, 34 Mo. 461; Duvall v. Cooperage Co., 275 S.W. 586; Farmers Bank v. Trust Co., 203 S.W. 674; Albright v. Oil Co., 206 Mo. App. 412; Kennedy v. Klein, 19 Mo. App. 15. (b) The cases of Price v......
  • Corbin v. Kansas City, C. C. & St. J. Ry. Co., No. 17221.
    • United States
    • Missouri Court of Appeals
    • May 25, 1931
    ...150 Mo. 385, 401, 51 S. W. 682; Russell v. Bauer-Berger Grocery Co. (Mo. App.) 288 S. W. 985, 987; Duvall v. Cooperage Co. (Mo. App.) 275 S. W. 586, 589; Mather v. Railroad, 166 Mo. App. 142, 149, 148 S. W. 383. We have examined the case of Yoakum v. A., T. & S. Fe Railroad (Mo. App.) 199 4......
  • Request a trial to view additional results

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