Grab v. Davis Const. Co.

• Decision Date: 02 November 1937
• Citation: 109 S.W.2d 882,233 Mo.App. 819
• Parties: VIOLET GRAB, AN INFANT, BY HER NEXT FRIEND, LENA GRAB (PLAINTIFF), RESPONDENT, v. DAVIS CONSTRUCTION COMPANY (DEFENDANT), APPELLANT
• Court: Missouri Court of Appeals

109 S.W.2d 882

233 Mo.App. 819

VIOLET GRAB, AN INFANT, BY HER NEXT FRIEND, LENA GRAB (PLAINTIFF), RESPONDENT, v. DAVIS CONSTRUCTION COMPANY (DEFENDANT), APPELLANT

Court of Appeals of Missouri, St. Louis

November 2, 1937

Motion for rehearing overruled November 19, 1937.

Writ of certiorari denied February 25, 1938.

Appeal from the Circuit Court of St. Francois County.--Hon. Taylor Smith, Judge.

AFFIRMED.

Judgment affirmed.

W. A Brookshire for appellant.

(1) Milliken v. Thyson Commission Co., 202 Mo. 637; Kennedy v. Metropolitan St. Ry. Co., 128 Mo.App 297; Kendrick v. Harris, 171 Mo.App. 208; Smith v. Ry., 113 Mo. 70. (2) Sheffer v. Schmidt (Mo.), 26 S.W.2d 592, l. c. 596; Waldman v. Skrainka Const. Co., 289 Mo. 622; Hamra v. Helm, 281 S.W. 103; Walker v. Town of Pittsfield, 91 N.E. 589; Feeley v. Melrose, 205 Mass. 329, l. c. 333; Kinnie v. Town of Morristown, 172 N.Y.S. 21, l. c 24-25; Gerrie v. City of Port Huron, 226 Mich. 630, l. c. 634. (3) A contractor engaged in building, repairing or altering a public highway is not an insurer of the safety of those traveling over the highway under construction, but is required to use only ordinary care. In the case at bar the evidence shows conclusively that the defendant used the only practical and serviceable method for cleaning dirt from the highway, and that having used this method, it cannot be convicted of negligence. Donahoe v. Webster Groves, 259 S.W. 505, l. c. 506; Buckley v. Washington County et al., 209 N.W. 558, l. c. 560; 9-10 Huddy on Automobile Law, Section 232, pages 368-369; Gerrie v. City of Port Huron, 226 Mich. 630, l. c. 634. (4) Alcorn v. C. & A. Ry. Co., 108 Mo. 81, l. c. 90; Johnson v. St. L. and S. F. R. Co., 164 Mo.App. 600; Miniea v. St. Louis Cooperage Co., 175 Mo.App. 91; Ely v. Ry. Co., 77 Mo. 34, l. c. 37; Bailey v. Kansas City, 189 Mo. 503, l. c. 511. (5) Hospital records are not admissible in evidence unless properly identified and properly authenticated, and then such record, to make it admissible, must relate to the condition of a patient admitted or committed for medical treatment of disease. The statute does not apply to a record made on a patient suffering from personal injuries only (Section 9056, Revised Statutes Missouri 1929). Shaw v. American Insurance Union, 33 S.W.2d 1052, l. c. 1054-1055. (6) The Court erred in giving plaintiff's instruction No. 1 because: The instruction was not within the purview of the pleadings and evidence. Donahoe v. Webster Groves, 259 S.W. 505, l. c. 506; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645. The instruction was broader than the pleading, and, therefore, erroneous. International Harvester Co. v. Spires, 223 S.W. 799. The effect of the instruction was to make defendant an insurer. State ex rel. Peoples Bank v. Melton, 251 S.W. 447; Simms v. Dunham, 203 S.W. 652. The instruction submitted a theory of the case not sustained by the pleadings and evidence. Schumacher v. Kansas City Brewery Co., 247 Mo. 141. It permitted the jury to find facts for which neither party contended and of which there is no evidence. Barnett v. Smith, 230 S.W. 681. The instruction was argumentative. Gleason v. The Texas Co., 46 S.W.2d 546; Cunningham v. Kansas City Pub. S. Co., 77 S.W.2d 161; Dohring v. Kansas City, 81 S.W.2d 943. The instruction was a comment on the evidence. (7) It was prejudicial error for counsel for plaintiff, in his closing argument, to go outside the record and attempt to influence the action of the jury by asserting as facts matters which do not appear in evidence. Jackman v. St. Louis & Hry. Co., 206 S.W. 244; Beer v. Martel, 55 S.W.2d 482; State ex rel. State Highway Com. v. Patton, 77 S.W.2d 857. (8) The verdict in this case is excessive, and so excessive as to show the result of passion and prejudice on the part of the jury. Ullmer v. Farnham, 28 S.W.2d 113; Sachse v. Highland Dairy Farms Co., 45 S.W.2d 934; Adams v. Mo. P. Ry., 100 Mo. 555, l. c. 569; Chitty v. Railway Co., 166 Mo. 435; Partello v. Mo. P. Ry., 217 Mo. 645, l. c. 659; Clifton v. Railroad Co., 232 Mo. 708; Costello v. Kansas City, 280 Mo. 576; Busse v. White, 302 Mo. 672, l. c. 681; Wellman v. Met. St. Ry. Co., 219 Mo. 126, l. c. 154-155; Clark v. Miss. River and B. T. Ry., 23 S.W.2d 174.

Reardon & Lyng, John H. Martin and Raymond S. Roberts for respondent.

(1) Defendant's instructions in the nature of a demurrer to the evidence, submitted at the close of plaintiff's case, and again at the close of the whole case, was properly refused. Bird v. St. Louis-San Francisco Ry. Co., 78 S.W.2d 389; Beebe v. Kansas City, 34 S.W.2d 57; Young v. Wheelock, 64 S.W.2d 950; Stith v. J. J. Newberry Co. et al., 79 S.W.2d 447; August Viermann Bricklaying Co. v. St. Louis Const. Co., 72 S.W.2d 734; Lang v. J. C. Nichols Inv. Co., 59 S.W.2d 63; Cederland v. Thompson, 209 S.W. 554; Donohoe v. Webster Groves, 259 S.W. 505; Melican v. Const. Co., 278 S.W. 361. (2) The question of the negligence of plaintiff's father as driver of the automobile as the sole cause of the accident, and subsequent injuries to the plaintiff, was a question of fact for the determination of the jury, which was properly and adequately instructed on this phase of the case. Melican v. Const. Co., 278 S.W. 361. (3) A contractor engaged in building, repairing or altering a public highway is required to use ordinary care to protect the safety of those traveling upon that highway. Lang v. J. C. Nichols Inv. Co., 59 S.W.2d 63; Cederland v. Thompson, 209 S.W. 554; Donohoe v. Webster Groves, 259 S.W. 505; Melican v. Const. Co., 278 S.W. 361. (4) The testimony of the witness Barnett to the effect that the blade was used on the highway after the accident was admissible to show that it had not been effectively used immediately before the accident, as strenuously contended by the defendant. Phillips v. Hamilton-Brown Shoe Co., 165 S.W. 1183; Bujalo v. St. Louis Basket & Box Co., 227 S.W. 844; Lanham v. Vesper-Buick Automobile Co., 21 S.W.2d, l. c. 893. (5) The record of the Firmin Desloge Hospital was one required by law to be kept, and was properly admitted in evidence. Shaw v. American Insurance Union, 33 S.W.2d 1054; Kirkpatrick v. Wells, 6 S.W.2d 591; Galli v. Wells, 279 S.W. 894; Knickerbocker v. Athletic Tea Co., 285 S.W. 799; Knight v. Western & Southern Life Ins. Co., 53 S.W.2d 1108. (6) Plaintiff's instruction No. 1 was correctly given, since it incorporated all the elements necessary for a recovery in this type of case. Lang v. J. C. Nichols Inv. Co., 59 S.W.2d 63; Cederland v. Thompson, 209 S.W. 554; Donohoe v. Webster Groves, 259 S.W. 505. (7) The trial court is allowed large discretion in permitting or restraining argument, and the appellate court will not interfere unless it clearly appears that the trial court abused its discretion in failing to restrain the argument. Rouchene v. Gamble Const. Co., 89 S.W.2d 58, l. c. 65; Marlo v. Nafziger Baking Co., 63 S.W.2d 115; Goyette v. St. Louis-San Francisco R. R. Co., 37 S.W.2d 552; Kelso v. W. A. Ross Const. Co., 85 S.W.2d 527; Rockenstein v. Rogers, 31 S.W.2d 792, l. c. 800; Busch v. Louisville & Nashville R. R. Co., 17 S.W.2d 337. (8) The verdict in this case is not excessive. Newton v. Harvey et al., 202 S.W. 249; Clark v. Atchison & Eastern Bridge Co., 62 S.W.2d 1069; Lord v. Austin, 39 S.W.2d 575; Allen v. Purvis, 30 S.W.2d 196.

HOSTETTER, P. J. McCullen, J., concurs; Becker, J., absent.

OPINION

HOSTETTER, P. J.

This is an action for damages on account of personal injuries sustained by plaintiff, Violet Grab, the ten year old daughter of Otto Grab, who was driving a Model T Ford on Highway # 61 in the vicinity of Beck in Jefferson County, Missouri, on the 16th day of March, 1935, with his daughter as a passenger at the time of the reception of her injuries.

The suit was brought in the Circuit Court of St. Francois County on October 8, 1935, and was tried to a jury on the 19th and 20th of December, 1935, resulting in a verdict in favor of plaintiff for $ 5000, on which judgment was rendered on the last mentioned date.

W. C. Huff, the driver of one of the cars involved in the collision in which plaintiff was injured, was originally a defendant, but, under the instructions of the trial court was held not liable.

The auto in which plaintiff was riding northwardly skidded on the mud covered highway and collided with the car driven by W. C. Huff, which was traveling southwardly. The accidental collision occurred between the Frisco railroad underpass and a small stream known as Plum Creek.

At the time and place of the accident the defendant, Davis Construction Company, was engaged in repairing and reconstructing the highway at this point under a contract with the State Highway Commission. The principal work at this point consisted of putting in a new section of twenty foot concrete slab about ten feet east of the old highway. This involved a widening of the highway at and on either side of the scene of the accident.

Defendant was making a fill on the east side of the old slab, on which to lay the new, between the Creek and the underpass. The dirt with which to make the fill was obtained from a pit on the west side of the old slab. The highway was, at all times kept open for traffic, and the traffic was using the old section of the highway. At this particular time they were hauling dirt to put in a fill for the new section of highway. They hauled this dirt by means of trucks from a point north of where the accident occurred to a point south thereof. These trucks, in going from the pits where they obtained the dirt to the fill, used the old section of the highway for some distance, and would cross over to the fill. During this operation, dirt would fall from the trucks, also from the wheels of the trucks. This...