Haake v. G. H. Dulle Milling Co.

• Decision Date: 31 December 1912
• Citation: 153 S.W. 74
• Parties: HAAKE v. G. H. DULLE MILLING CO.
• Court: Missouri Court of Appeals

153 S.W. 74

HAAKE v. G. H. DULLE MILLING CO.

Kansas City Court of Appeals. Missouri.

December 31, 1912.

Rehearing Denied February 3, 1913.

1. TRIAL (§ 234) — INSTRUCTIONS — QUESTION OF LAW.

Where the facts, which instructions required the jury to find, justified an instruction, in effect, that they would be conclusive of defendant's negligence, there was no necessity for requiring the jury to find such acts to be negligent in order to find for plaintiff.

2. DAMAGES (§ 210) — INSTRUCTIONS — CONFORMITY TO PLEADINGS AND ISSUES.

Where the petition in a servant's action for injuries restricted his medical expenses to $175 before the commencement of the suit, and there was evidence that he was permanently injured, and that the expenses incurred and those reasonably certain to be incurred were indefinite, but greatly in excess of $175, an instruction allowing damages for his necessary medical expenses, without limiting such allowance or confining it to expenses incurred before the suit, was erroneous as enlarging the scope of the recovery.

3. TRIAL (§ 133) — ARGUMENT AND CONDUCT OF COUNSEL — REPEATING QUESTIONS.

Where counsel for plaintiff persisted in asking leading questions, to which the court sustained defendant's objections, and as to which the record showed no further objection on the part of defendant, no issue of misconduct on that ground was presented.

4. TRIAL (§ 125) — ARGUMENT AND CONDUCT OF COUNSEL — APPEAL TO SYMPATHY.

Counsel for plaintiff, in an action for personal injuries, in his closing argument said, "How many of you, gentlemen of the jury, would have your arm torn from your body for $10,000?" which remark the court at defendant's request withdrew with the admonition to keep within the record, but defendant repeated the same idea in a different way, and on another warning exclaimed that he would do "anything on earth to please this man," referring to the objector, and then repeated the objectionable remark in a more impressive way. Held, that the argument was reversible error as an appeal to the passions and sympathy of the jury.

Appeal from Circuit Court, Cole County; John M. Williams, Judge.

Action by G. H. Haake against the G. H. Dulle Milling Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Watts, Gentry & Lee, of St. Louis, for appellant. W. C. Irwin and D. F. Calfee, both of Jefferson City, for respondent.

JOHNSON, J.

This is a personal injury suit. Plaintiff had been employed 35 years as a laborer in a mill operated by defendant at Jefferson City, and was injured when engaged in oiling machinery, a task he was required to perform while the machinery was running. He had to ascend a ladder and extend his hand and arm between a moving belt and pulley wheel in order to oil one of the bearings, the oil hole of which could not be seen from his position (which was the only position he could take), and could be found and filled with oil only by use of the tactile sense. The belt had been spliced, and at one of such places had become worn and frayed. While oiling this bearing, plaintiff's arm necessarily was in close proximity to the belt which was moving rapidly, and the roughened and frayed edges of the defective splice caught his sleeve, and he was jerked over the pulley wheel and severely injured. His evidence tends to show that he was performing his task in the usual manner, and was exercising due care. The specifications of negligence in the petition, which find support in the evidence of plaintiff, are: First, the failure of defendant to provide a suitable oil can—i. e., a can with a long spout; second, the failure to equip the bearing with an oil-conducting tube that would permit the introduction of the oil without the insertion of the servant's arm in a dangerous place; third, operating a belt which had a defective and dangerous splice; and, fourth, the omission to inclose the moving parts of the machinery with a suitable guard. The answer contains a general denial and pleas of assumed risk and contributory negligence. A trial of the issues resulted in a verdict and judgment for plaintiff in the sum...