Hall v. Fulton Iron Works Co.

• Decision Date: 04 September 1930
• Parties: Warren Hall v. Fulton Iron Works Company, Appellant
• Court: Missouri Supreme Court

31 S.W.2d 81

326 Mo. 20

Warren Hall v. Fulton Iron Works Company, Appellant

Supreme Court of Missouri

September 4, 1930

Transferred from St. Louis Court of Appeals.

Affirmed.

Joseph C. McAtee for appellant.

(1) The court erred in failing to sustain defendant's motion to discharge the jury when plaintiff asked witness, Dr. Reilly who T. H. Mastin & Co. were, and disclosed they represented an insurance company. Trent v. Ptg. Co., 141 Mo.App 437; Gore v. Brockman, 138 Mo.App. 231; Chambers v. Kennedy, 274 S.W. 726. (2) The court erred in giving Instruction 1 on behalf of plaintiff. Heigold v. United Railways, 271 S.W. 773; Stumpf v. Railways Co., 227 S.W. 852; Jaquith v. Fayette R. Plumb, Inc., 254 S.W. 89; Humphrey v. Railway Co., 191 Mo.App. 710; Hall v. Coal & Coke Co., 216 Mo. 352; Thomas v. Babb, 45 Mo. 384; Gunn v. Hemphill Lbr. Co., 218 S.W. 978. (3) The court erred in giving Instruction No. 2, because the instruction is contrary to the evidence, contrary to the law and contrary to instructions given on behalf of the defendant. Gunn v. Hemphill Lbr. Co., 218 S.W. 978; Humphrey v. Railway Co., 191 Mo. 720. (4) The verdict of the jury was a quotient verdict and the figure therein stated was arrived at by a pre-arranged plan stating their respective figures, adding them and dividing same by ten. Jobe's Admr. v. Weaver, 77 Mo.App. 665; Kalb v. Transit Co., 102 Mo.App. 150. (5) The court erred in failing to sustain defendant's motion to discharge the jury when counsel for plaintiff stated that plaintiff was limited to filing suit for $ 3,000 and also in failing to reprimand counsel as requested by defendant, through its counsel. Neff v. Cameron, 213 Mo. 350; Barr v. Quincy O. K. R. Co., 138 Mo.App. 471; Haake v. Milling Co., 168 Mo.App. 177; Whelan v. Zinc Co., 188 Mo.App. 592.

Al. F. Gerritzen, Mark D. Eagleton and James A. Waechter for respondent.

(1) The court did not err in failing to discharge the jury. Snyder v. Elec. Co., 223 S.W. 918; Jablonowski v. Cap Co., 279 S.W. 89; Zein v. Stone Co., 273 S.W. 765; Miller v. Clay Products Co., 282 S.W. 141. (2) Instructions 1 and 2 authorizing a verdict in plaintiff's behalf are proper in form and contain all the necessary elements: Degonia v. Railroad, 123 S.W. 817; Stid v. Railroad, 236 Mo. 382; Humphreys v. Railroad, 191 Mo.App. 710; Gunn v. Hemphill, 218 S.W. l. c. 982; Sparkman v. Railroad, 191 Mo.App. 463; Barnes v. Elliott, 251 S.W. 488; Kidd v. Light & Power Co., 239 S.W. 584. (3) A jury cannot impeach its own verdict. Reisman v. Wells, 258 S.W. 46. (4) No error was committed in refusing to grant a new trial on the affidavit of plaintiff's former employer. Neal v. Rys. Co., 229 S.W. 215; Devine v. Wells, 254 S.W. 65. (5) The remarks of counsel were not improper. Burns v. McDonald Mfg. Co., 213 Mo.App. 640, 650; State v. Kelly, 284 S.W. 803; Torreyson v. United Railways, 246 Mo. 696, 706; Taul v. Saddlery Co., 229 S.W. 420; Northcut v. Stone Co., 178 Mo.App. 389; Anderson v. Rd. Co., 161 Mo. 411, 431; McAntire v. Hewitt, 75 Mo.App. 304. (6) The judgment should be affirmed. Secs. 1276, 1513, R. S. 1919.

Lindsay, C. Seddon and Ellison, CC., concur.

OPINION

LINDSAY

This case has been certified to this court by the St. Louis Court of Appeals, upon the dissent and request of one of the judges, who deemed the ruling of the majority opinion to be in conflict with decisions of this court. The dissent, and suggested conflict, refer to the ruling of the majority opinion upon an instruction given for the plaintiff, respondent; but the cause is here for determination "as in case of jurisdiction obtained by ordinary appellate process." [Section 6, Amendment of 1884 of Article VI of State Constitution.]

It is an action for damages for personal injuries sustained by plaintiff on May 19, 1925, while he was in the employ of defendant in its foundry. Molten metal was being poured from a large ladle into a small ladle. The plaintiff had nothing to do with that operation, but at the time was engaged in other work a short distance away. During the operation mentioned, molten metal was caused to splash from the small ladle to the ground where plaintiff stood, and upon his right foot and ankle, burning and injuring the same. He had a verdict, returned by ten of the jurors, in the sum of $ 1970, and the appeal is from the judgment entered thereon.

The petition alleged that the work of pouring the molten metal from the large ladle into the small ladle was being done by defendant near where plaintiff was, and that "while defendant was so doing, certain molten metal and encrustation thereof, known as 'scab,' in falling into said small ladle, caused molten metal therein to splash up and out and against plaintiff, burning and injuring him, all of which directly and proximately resulted from the negligence and carelessness of the defendant." The negligence pleaded in the two particulars submitted to the jury, was, (1) that defendant failed to exercise ordinary care to furnish plaintiff a reasonably safe place in which to work, in that, while the metal was being poured from a large ladle into a small one it was likely to be caused to fly and to strike and injure plaintiff and he was in danger, and not reasonably safe; (2) failure to exercise ordinary care to adopt and use a reasonably safe method of pouring the metal, in that, while so doing no provision was made for holding back said "scab" and preventing it falling into the small ladle, and no workmen or device was furnished for that purpose, and that without such precautions said method was dangerous and not reasonably safe, and likely to cause injuries as aforesaid, all of which defendant knew or by the exercise of ordinary care could have known. The answer was a general denial, with a plea of assumption of the risk, and the reply was a general denial.

We adopt the statement of facts found in the majority opinion of the Court of Appeals giving the circumstances under which plaintiff was injured, and the nature of the testimony for the respective parties upon that subject, as follows:

"Plaintiff was employed as a molder helper, and had been in defendant's service for three weeks when his injury was received. In the particular plant in which he was working, it was the practice for molten metal to be poured out of a cupola, into a large container or ladle having a capacity of 20,000 pounds. The large ladle was then conveyed by a crane as near as possible to the point where the metal was to be placed into the molds. At such point, the metal was emptied from the large ladle, into the smaller ones holding 150 pounds each, and held by two men. During such process the top of the large ladle would be six or seven feet above the ground, and the men carrying the small ladle would grasp it by a bar extending across the top and beyond the sides, and raise it to the height of their shoulders, whereupon the large ladle would be caused to tilt by means of a mechanical device operated by another employee.

"All witnesses agreed that as the molten metal cooled or chilled, a scum from the impurities in the iron formed over the top. By plaintiff's evidence this scum was described as a 'scab' or slate formation which became hard. Plaintiff himself testified that it was customary for an employee termed a 'skimmer' to follow the crane, and by using a paddle, hold back the 'scab' while the metal was being poured from the large ladle into the small one. Defendant's evidence, to the contrary, was that the 'skimmer' performed such duty only when the metal was being emptied from the small ladles into the molds.

"At two o'clock in the afternoon of the day in question (though the usual time for filling the small ladles was three o'clock), two men, Richt and Donaldson, carried one of the small ladles to the large ladle to be filled. Plaintiff, at the time, was standing twenty feet from the large ladle, with his back turned toward it, and did not know, nor had he been informed, that the metal was to be poured. It was undisputed that it was no part of plaintiff's duties to assist or take part in this character of work.

"Richt, called as a witness for plaintiff, testified that when the small ladle, which he and Donaldson were holding, became half filled, a portion of the 'scab' fell from the large ladle into the small one, causing the metal to splash upon him and burn him, whereupon he released his hold, as did Donaldson, also, momentarily thereafter. When the ladle fell, part of its contents poured out and ran against plaintiff's foot, producing the injury on account of which this action was brought.

"Defendant's witnesses admitted that the small ladle was dropped, and that plaintiff was burned in the manner narrated by him, but denied that any 'scab' or scum came out of the large ladle, although it was disclosed by such witnesses that the large ladle had been filled for thirty minutes when the pouring was attempted, and that a considerable 'scab' or scum had formed during that period of time, which had been observed by the foreman who was present at the scene of activities. The operator of the large ladle did testify, however, that sometimes the 'scab' did fall. All the witnesses agreed that no 'skimmer' was present at the time plaintiff received his injury, to restrain the 'scab' from falling."

The defendant makes no point that the evidence was insufficient to make a case for the jury. The errors assigned relate to other matters.

The first error assigned is the refusal of the court to sustain defendant's motion to discharge the jury because of the admission of certain testimony over defendant's objection.

Dr Reilly, a physician, was called by defendant, and testified that he made an examination of the plaintiff with reference to the extent and...