Evans v. General Explosives Co.

• Decision Date: 07 April 1922
• Parties: EDWIN L. EVANS, by Next Friend, v. GENERAL EXPLOSIVES COMPANY, Appellant
• Court: Missouri Supreme Court

239 S.W. 487

293 Mo. 364

EDWIN L. EVANS, by Next Friend, v. GENERAL EXPLOSIVES COMPANY, Appellant

Supreme Court of Missouri, Second Division

April 7, 1922

[Copyrighted Material Omitted]

Appeal from Jasper Circuit Court. -- Hon. Joseph D. Perkins, Judge.

Affirmed.

M. V Kannally and H. S. Miller for appellant.

(1) The court erred in refusing to give the declaration in the nature of a demurrer to the evidence, requested by the defendant at the close of plaintiff's case, and also at the close of all the testimony. Beckstein v. Central Star Laundry Co., 124 N.Y.S. 446; Doerr v. Brewing Assn., 176 Mo. 556; Finuta v. Manufacturing Co., 174 Mo.App. 87; Stegman v. Gerber, 146 Mo.App. 104; Nugent v. Milling Co., 131 Mo. 245; George v. Mfg. Co., 159 Mo. 333; Hirsch v. Bread Co., 150 Mo.App. 162; Maupin v. Miller, 164 Mo.App. 149; Pohlmann v. Foundry Co., 123 Mo. 219; Smith v. Box Co., 193 Mo. 715; Pirkowski v. Rope Co., 190 Mo.App. 597; Baker v. Lusk, 199 Mo.App. 46. (a) In the case at bar, although this plaintiff was under twenty-one years of age, yet he was well educated and had had a great deal of experience in and about machinery, and in such case the law is clear he is held to the same responsibility as an adult. Levi v. Bigelow, 6 Ind.App. 677; Goff v. Ry. Co., 36 F. 299; De Graff v. Ry. Co., 76 N.Y. 125; Crown v. Orr, 140 N.Y. 450; Jones v. Roberts, 57 Ill.App. 56; White v. Lithographing Co., 141 N.Y. 631; Hayden v. Mfg. Co., 29 Conn. 548; Mill Co. v. Spear, 145 Ill. 329; Trobert v. Phipps, 149 Mass. 258; Gilbert v. Gill, 144 Mass. 601; Luebecke v. Mach. Wks., 88 Wis. 442; Sanborn v. Ry., 35 Kan. 292; Stegman v. Gerber, 146 Mo.App. 104. (b) No duty rests upon the employer to notify the minor of the ordinary dangers of his employment which the latter knows and appreciates; and as to those that are so apparent and open that one of his age, capacity and experience, in the exercise of ordinary care, knows and appreciates, the minor is governed by the same rules as the adult. He assumes these risks by entering upon or continuing in the employment, and no negligence can be charged to the master because he fails to give futile notice and warning of those dangers which the minor knows and appreciates or ought to know and appreciate. Engine Works v. Randall, 100 Ind. 293; Berger v. Ry. Co., 39 Minn. 78; Sullivan v. Mfg. Co., 113 Mass. 396; Jones v. Phillips, 39 Ark. 38. (c) If this court should hold that the danger in this case was open, obvious and patent, then, regardless of any negligence on the part of the defendant in this case, plaintiff cannot recover. Roberts v. Telephone Co., 166 Mo. 378; Steinhauser v. Spraul, 127 Mo. 562; Junior v. Light Co., 127 Mo. 83; Mathis v. Stock Yards Co., 185 Mo. 445; Herbert v. Boot & Shoe Co., 90 Mo.App. 316; Hirsch v. Bread Co., 150 Mo.App. 171. (2) The court erred in permitting the attorney for the plaintiff to argue as to what juries may have done or may not have done in former trials of similar cases. This was error for which a new trial must be granted. Gibson v. Zeibig, 24 Mo.App. 65; Holliday v. Jackson, 21 Mo.App. 670; Wilburn v. Railroad, 48 Mo.App. 232; Barnes v. St. Joseph, 139 Mo.App. 550; Haines v. Town of Trenton, 108 Mo. 133; Ritter v. Bank, 87 Mo. 576; Evans v. Trenton, 112 Mo. 404. (3) The verdict rendered in this case is so highly excessive and so grossly exorbitant and unjust as to show passion and prejudice on the part of the jury. Farrar v. Railroad, 249 Mo. 227; Kinney v. Railroad, 261 Mo. 97; Phippin v. Railroad, 196 Mo. 321; Burdict v. Railroad, 123 Mo. 221; Lessendon v. Railroad, 238 Mo. 247; Hill v. Electric Co., 260 Mo. 43; Williams v. Wabash, 175 S.W. 900; Applegate v. Railroad, 252 Mo. 173; Ostertag v. Railroad, 261 Mo. 457; Davenport v. Electric Co., 242 Mo. 111. (4) The court erred in admitting incompetent, irrelevant and immaterial evidence on behalf of the plaintiff. (5) Likewise the court erred in permitting the plaintiff to detach his artificial arm and exhibit the stump of his arm to the jury, together with all the harness in connection therewith, and remove the same from his body before the jury, there having been no dispute as to the arm being lost. (6) The court erred in giving instruction 1 to the jury at the request of the plaintiff. Roberts v. Telephone Co., 166 Mo. 379. (7) Likewise, instruction 25, requested by the defendant and refused by the court, ought to have been given. Finuta v. Mfg. Co., 174 Mo.App. 88. (8) Likewise the court erred in refusing instruction 26, requested by the defendant.

Howard Gray for respondent.

(1) This is purely an action at law, and it has become elementary law in this State that the verdict of the jury if sustained by substantial evidence is conclusive as to the facts. Cowan v. Young, 282 Mo. 45. The jury had the right to take the testimony of the plaintiff himself and to the inferences of fact which might be drawn in any degree of propriety therefrom and base its verdict on such testimony, and as the trial court has overruled the motion for new trial, such finding by the jury is conclusive upon this court and not subject to review. Maginnis v. Mo. Pac. R. R. Co., 268 Mo. 667; Buesching v. Gas. Light Co., 73 Mo. 219. (2) Appellant earnestly insists that inasmuch as there was nothing hidden about the wringer and that it was easily started and stopped and the danger was visible and patent, the plaintiff was not entitled to any warning and the court should have sustained the demurrer. In this contention the appellant entirely overlooks another important factor and leaves out of consideration the question of the age and experience of the plaintiff and whether or not he appreciated the danger. Henderson v. Kansas City, 177 Mo. 477; Dowling v. Allen, 74 Mo. 13; Goins v. Railroad, 37 Mo.App. 221; Czernicke v. Ehrlich, 212 Mo. 395; Saller v. Shoe Co., 130 Mo.App. 712; Burger v. Railroad, 112 Mo. 238. (3) It is next asserted by appellant that as the machine was easily started and stopped and was all before the plaintiff, no warning was necessary and the plaintiff assumed whatever risk there was in operating it, in either a good or defective condition. This is not the law. Saller v. Shoe Co., 130 Mo.App. 712; Vaneseler v. Box Co., 108 Mo.App. 629; Timmerman v. Frankel, Frank & Co., 172 Mo.App. 174; Burger v. Mo., 112 Mo. 238; Bulson v. International Shoe Co., 191 Mo.App. 128; Plate v. Wire Co., 227 S.W. 899. (4) The fact that the plaintiff could not tell just exactly how he was injured would not have justified the court in sustaining a demurrer to the evidence, and the rule that when the injury may have been the result from one or two causes, for one of which the master would not be liable, the burden is cast on the servant to affirmatively prove that his injury was due to his master's negligence does not apply when the proof sustains the inference that the injury was the result of one or two causes created by the negligence of the master. Werner v. Street Rd. Co., 138 Mo.App. 1. (5) In passing on the plaintiff's case and considering the authorities, we must keep in mind two things in addition to the age and experience of the plaintiff, to-wit, he had only operated this machine a few minutes, and second, that he testified that he did not know anything about the dangers in operating it or that it was liable to jerk his arm from the shoulder in case it got into the basket. (6) There was no error in the argument presenting the plaintiff's case to the jury. Counsel for appellant takes the position that no argument is legitimate unless the court would have admitted evidence on the very point covered by the argument. This would exclude attorneys from quoting history, using illustrations, or calling jurors' attention to things which they had observed from their common experience. Hurst v. Railroad Co., 280 Mo. 566; Smith v. Railroad Co., 213 S.W. 481; Duffy v. Railroad Co., 217 S.W. 883; Hays v. Rys. Co., 183 Mo.App. 608; Hulse v. Railway Co., 214 S.W. 156; Thomas Madden, Son & Co. v. Wilcon, 91 N.E. 933; Dean v. Railroad Co., 129 S.W. 953. (7) The verdict in this case is not excessive. Daugherty v. Railroad, 97 Mo. 647; Waldheir v. Railroad, 87 Mo. 37; Miller v. Harpster, 273 Mo. 605; Ostertag v. Railroad, 261 Mo. 457; Hollenbeck v. Railroad, 141 Mo. 97; Hill v. Light & Power Co., 260 Mo. 43; Jackman v. Ry. Co., 231 S.W. 978. (8) Under appellant's point four, it complains of the action of the court in permitting Woods and Barnard to testify that they steadied the basket with their hands. This testimony was offered for the sole purposes of showing that it had been the practice for a long time of the adult employees of the defendant to use their hands in steadying the basket, and therefore tending to prove that the defendant knew of the practice, and if it was dangerous, to have warned the plaintiff against it, and meeting the defense of contributory negligence. Lindelof v. Wagon Co., 186 S.W. 537; Martin v. Cotton Oil Co., 194 Mo.App. 120.

OPINION

WALKER, J.

This is an action for personal injuries received by plaintiff while in the employ of the defendant. Upon a trial to a jury in the Circuit Court of Jasper County, where the injury was sustained and the action brought, a verdict was rendered in plaintiff's favor for twenty thousand dollars. From the judgment rendered thereon, the defendant appeals.

The defendant is an incorporated company engaged in the manufacture of explosives at Carl Junction, Jasper County. The plaintiff, at the time he was injured, was a boy between seventeen and eighteen years of age and was working at a power wringer, which, as designated by defendant, is a centrifugal extractor for wringing clothes, but is used by the defendant in wringing the water from cotton in preparing the same for use in the manufacture of powder....