Highfill v. City of Independence

• Decision Date: 11 November 1916
• Docket Number: No. 17628.,17628.
• Parties: HIGHFILL v. CITY OF INDEPENDENCE.
• Court: Missouri Supreme Court

189 S.W. 801

HIGHFILL v. CITY OF INDEPENDENCE.

No. 17628.

Supreme Court of Missouri. In Banc.

November 11, 1916.

Motion for Rehearing Overruled December 4, 1916.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by Charles F. Highfill against the City of Independence. Judgment for plaintiff, and defendant appeals. Judgment affirmed, on condition that remittitur be filed; otherwise, reversed and remanded.

This is an action for damages for personal injuries received by plaintiff while working for the defendant, which is a municipal corporation owning and operating its own electric light plant. The date of the injury is shown to have been December 9, 1910, while the cause was tried in November, 1912, and resulted in a verdict and judgment in favor of plaintiff in the sum of $16,000. Defendant appeals.

The evidence discloses that at and prior to the date of the injury the defendant was engaged in taking out three old boilers and tearing down the brick and other structures which supported them in order to install new boilers. One Nichols was superintendent of the electric light plant, and as such not only had general supervision over the entire plant and matters relating thereto, but also the work of removing the old boilers and installing the new. The plaintiff's evidence tends to show that the work in which the plaintiff and others were engaged was under the direct control, supervision, and directions of Nichols, he acting as foreman for all such purposes.

The defendant's evidence tends to show that Nichols, while in general charge, was not directly supervising and instructing as to this work, but that the plaintiff himself was acting in the capacity of foreman. Plaintiff had been employed by Nichols about ten weeks prior to the accident, and had continued in such employment down to and including the time of injury.

The actual work of demolition had been in progress about eight days prior to the time of the accident. The boilers were about 16 feet long and 5 or 6 feet across, and had been entirely inclosed by a brick wall. The floor of the boiler room was of brick. The brick wall inclosing the boilers was about 9 feet in height, and there were two steel I-beams about 30 feet in length extending horizontally across the wall from the east to the west, one being about 4 feet from the south wall, the other about 4 feet from the north wall. These I-beams were 15 inches in thickness, and the lower flange thereof at each end rested upon an upright or perpendicular I-beam, which was imbedded in the brick wall, so that when the wall was standing only one side thereof was exposed, the others being surrounded by the brick wall. The lower end of this upright was fitted into an iron base plate with a socket one-half or three-fourths of an inch in depth, and the iron plate in turn rested upon a concrete base about 2 feet square. At the time of the accident the brick wall on the south side had been completely removed, and the walls on the east and west sides partially removed. The I-beams which extended across the top of the wall and which were supported by the uprights had been originally placed for the purpose of supporting the boilers. On the morning of the accident all three of the boilers had been taken down and removed from the building, and nothing remained to be done but to complete the removal of the wall, and to take down the two I-beams and the upright beams which supported them. On some day prior to the accident a steel cable had been fastened to the south cross I-beam in order to make its position more secure, and to prevent vibrations caused by the operation of the engine. Certain props had also been placed on each side of the upright beams, these consisting of timber and parts of boiler flues.

Immediately prior to the accident, Nichols instructed the plaintiff and one Clements to get a block and tackle and fasten them to the I-beam and to a girder in the roof of the building and take down the beams. Plaintiff and Clements thereupon procured a ladder and rested it against the north side of the south beam, the ladder leaning towards the south, and each of them got a block and tackle and were fastening one on the east and the other on the west end of the cross I-beam, plaintiff being on the west end. While they were so engaged the east end of the I-beam swung to the south and the west end, where plaintiff was working, swung to the north. This brought his ladder to an almost perpendicular position, when, seeing that the ladder was going to fall back to the north with him under it, he jumped.

The beam weighed something like 3,000 pounds and fell across plaintiff's back, first striking an iron wheelbarrow, which it broke.

The character and extent of plaintiff's injuries, as well as other pertinent facts, will be found in the opinion.

John F. Thice, of Independence, and O. C. Mosman and Warner, Dean, McLeod & Langworthy, all of Kansas City, for appellant. John D. Strother and L. T. Dryden, both of Independence, for respondent.

REVELLE, J. (after stating the facts as above).

I. Numerous grounds of negligence were alleged, but most of these were withdrawn from the jury's consideration by divers peremptory instructions. No instruction declaring the theory or grounds of negligence upon which the case was submitted was given, and this we must ascertain by a comparison of the petition with the peremptory instructions, and the application of a nice process of elimination. That such a practice is bad and richly deserving of condemnation this court has not hesitated to express, but so far its action has been limited to the formation of an artillery of words and negative deeds. Powell v. Railroad, 255 Mo. loc. cit. 456, 164 S. W. 628; Eversole v. Railroad, 249 Mo. loc. cit. 529, 155 S. W. 419; McDonald v. Construction Co., 183 Mo. App. 429, 166 S. W. 1087; Nye v. Metropolitan St. Ry. Co. (No. 16812, not reported). While it might be said that this ought to be a sufficient warning to the bench and bar to refrain from such practice, nevertheless if, as has been said, men ought not to seek things in words, but words in things, our own action on this subject affords more or less justification for the condition of the present record, and it is largely for this reason that I am unwilling to reverse the judgment on this account. I do not mean by this that under no circumstances will this warrant a reversal, for I can conceive of records and conduct on the part of parties from which it would affirmatively appear that such was so prejudicial, confusing, and wrong as to warrant a reversal. Such a practice does not properly fit into our system of jurisprudence. Only issues of fact, except in particular cases, are legitimate subjects for a jury's determination. To be so tried such issues must first be made, and we find due procedure prescribed for this purpose. That such issues may be properly and intelligently tried the law decrees that other issues, such as of law and foreign facts, shall not be injected to confuse and confound the minds of the triers, and to effectuate this purpose the law wisely contemplates and provides that issues of law and the question of what is the issue of fact to be tried by the particular jury shall be first determined by one learned in such subjects, and that of these the fact triers shall be duly advised by proper declarations thereon. Without this it is difficult for the jury to know just what issue it is to pass upon, and unless it does know its verdict cannot be said to be responsive or to definitely determine anything. We require verdicts to be so definite as to show what they determine, and when the issues are uncertain the verdict can be but so. This practice is too much calculated to bring about an invasion by the jury of the court's functions, and to admit of findings on matters which have not been made legitimate issues by either the pleadings or proof. The condition of the present record is, however, in my opinion, such, when we give due consideration to all the instructions given, and the theory of the parties as disclosed by their conduct during the trial, as to fairly show that the failure in this respect to instruct was not so prejudicial or confusing as to warrant interference on our part.

II. Liability in this case is predicated upon the theory that the upright pieces upon which the I-beam in question rested were not adequately and securely fastened at the bottom, and that of this knowledge was neither had by nor required of the plaintiff, but was of ...