Honeycutt v. Wabash R. Co.
| Decision Date | 06 May 1958 |
| Docket Number | No. 29695,29695 |
| Citation | 313 S.W.2d 214 |
| Parties | Roy HONEYCUTT (Plaintiff), Respondent, v. WABASH RAILROAD COMPANY, a Corporation (Defendant), Appellant. |
| Court | Missouri Court of Appeals |
Ely, Ely & Voorhees, Robert C. Ely, St. Louis, John L. Davidson, Jr., St. Louis, of counsel, for appellant.
Terry, Jones & Welton, Kansas City, Charles E. Gray, St. Louis, for respondent.
HOUSER, Commissioner.
On the original appeal we held the evidence insufficient to support a finding of negligence and reversed a judgment for plaintiff. Honeycutt v. Wabash Railroad Co., Mo.App., 303 S.W.2d 153. Reference is made to that opinion for a concise resume of the pleadings and evidence. On certiorari to the United States Supreme Court our judgment was reversed and the cause was remanded to this court for proceedings in comformity with the opinion of that court holding that 'the proofs justified with reason the jury's conclusion that employer negligence played a part in producing the petitioner's injury.' Honeycutt v. Wabash Railway Co., 355 U.S. 424, 78 S.Ct. 393, 2 L.Ed.2d 380.
In conformity with the opinion of the United States Supreme Court we hereby set aside and vacate our judgment of June 4, 1957 and now hold that plaintiff's evidence made a submissible case of negligence under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. The cause has been reargued and resubmitted in this court. The appeal is now before us for review of certain points raised in defendant's brief but left undecided on the original appeal to this court upon our finding that plaintiff made no submissible case, and not decided by the United States Supreme Court.
First, did the trial court err in overruling defendant's objections to the testimony of the witness Earl L. Farris? Farris testified that the day previous to the accident he had used the same gun involved in plaintiff's accident; that he found that the 'trigger worked kind of quick;' that on one occasion when he reached down to pick up the gun it went off, and that he had told defendant's foreman that 'this thing is trigger-happy.' Defendant claims that this amounted to testimony that the gun was defective; that it came as a surprise; that defendant was not prepared to defend against such a claim in view of the fact that the petition contained no allegation that the gun was defective but alleged only that defendant was negligent in furnishing a gun with an unprotected trigger.
Assuming but not deciding that the question of the admissibility of this testimony is a non-federal question properly reviewable here, 1 we resolve the question in favor of plaintiff. If it could be inferred from Farris' testimony that the trigger of this gun tripped more easily than that of other guns of the same type and if that be a 'defect' upon which negligence can be predicated, it is nevertheless a fact that plaintiff made no attempt to count upon this 'defect' as a separate charge of negligence. It was not so pleaded. It was not instructed upon. It was not argued to the jury. The only issue of negligence drawn by the pleadings, instructed upon and argued to the jury was that of providing a rivet gun with an unprotected trigger. Even if the admission of this testimony had been erroneous it would not have required the setting aside of the verdict and judgment. From the record it does not appear that the jury was affected by this evidence. There has been no showing of prejudice or unfairness in the admission of this testimony or that its admission materially affected the merits of the action. See Renner v. Wolverton, Mo.Sup., 273 S.W.2d 325; Winkler v. Macon Gas Co., 361 Mo. 1017, 238 S.W.2d 386. But we find no error in the admission of this testimony. It was admissible on the issue of the necessity of having a trigger guard to protect the trigger from tripping too easily. The specific fault or neglect with which defendant was charged was the failure to provide plaintiff with a gun with a trigger guard. The failure to provide protection against the too-easy tripping of the trigger was the crux of the charge of negligence. The characteristics of the particular gun with reference to the ease with which the trigger could be tripped were germane to that charge. The easier it was to trip the trigger the greater was the danger to be anticipated in providing an employee with a gun with an unguarded trigger. There is no substantial basis for a claim of surprise. Defendant might reasonably have anticipated the introduction by plaintiff of evidence with reference to the ease with which the trigger could be tripped.
Second, did the trial court err in giving Instruction No. 7? Defendant claims that No. 7 improperly permitted the jury, in awarding damages, to take into consideration the future impairement of plaintiff's earning capacity. Citing Dehn v. Thompson, Mo.App., 181 S.W.2d 171; Edmonston v. Kansas City, 227 Mo.App. 817, 57 S.W.2d 690, and Stupp v. Fred J. Swaine Mfg. Co., Mo.Sup., 229 S.W.2d 681, defendant asserts that there is no basis in the evidence for this item of damages; that the only testimony relating to loss of time from work during the 17 months from time of injury to time of trial is that plaintiff lost the balance of the day of his injury and two days for a week-end trip to Decatur, Illinois for a medical examination; that there is no evidence that plaintiff will lose any earnings in the future. Plaintiff, citing McGarvey v. City of St. Louis, 358 Mo. 940, 218 S.W.2d 542, and Baker v. Norris, Mo.App., 248 S.W.2d 870, contends that the submission of future impairment of earning capacity was warranted for the reason that plaintiff's evidence conclusively showed that he had sustained a permanent injury and that this alone warranted the submission of the issue.
Plaintiff, a car-man in the repair department since 1947, was injured on November 10, 1954. Prior to the accident he had nothing wrong with him physically. When the rivet gun discharged plaintiff was struck in the left temple and left eye. His head began to throb. Plaintiff took the rest of the day off and was treated by Dr. Winthrow who sewed up the wound and put a pressure patch on his eye. Two days later plaintiff had a continuing dull headache and throbbing in his temple. His eye was black and blue for a few days. The pressure patch was removed in one week, after the wound had healed. Plaintiff remained under the care of Dr. Winthrow until April, 1955 when he was sent to Decatur, Illinois for examination by an eye doctor. X-rays were taken. He was at Decatur for two days. Plaintiff was given two prescriptions for eyeglasses. Dr. Winthrow gave plaintiff medicine to relieve his headaches. Except for the date of his injury and the two days at Decatur plaintiff worked every day from the date of injury until the time of trial, which commenced on April 2, 1956. A co-worker testified that plaintiff complained quite often that his head and eyes hurt him. At trial time he testified his eyes burn in the early morning, his head starts throbbing with pain and he suffers headaches every day beginning about 9 or 10 o'clock a. m. Later in the day it becomes worse. It is like a toothache throbbing. Sometimes when he wakes up in the morning the headaches are gone. Plaintiff obtains relief from Anacin, Bufferin and Aspirin. Medical witnesses testified that there was only a 10% chance of ameliorating the headaches by conservative treatment; that surgical treatment would be necessary which would require the cutting of some fibers at the base of the brain by cutting into the gasserian ganglion; that plaintiff's headaches arose from a neuritis affecting a branch of a facial nerve and that the headaches are permanent. As a result of these injuries plaintiff has given up many outside activities. Often he goes to bed 'right after supper, maybe 6 or 7 o'clock.' He cannot 'go on gatherings and things like we used to.' He has given up reading, 'all but glancing through newspapers,' because his head starts hurting worse and his eyes burn. His eye 'waters all the time--when I wake up in the morning it's bloodshot and burning.'
By Instruction No. 7 the jury was directed, upon finding the issues for plaintiff, to assess damages for bodily injuries and in so doing to take into consideration among other things The inclusion of this element in the instruction constituted reversible error for the reason that there is no evidence in the record to sustain such submission. There is no evidence of disability to work in the future, or of plaintiff's expectancy of life, s...
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