Hulsey v. Quarry & Construction Co.

• Decision Date: 04 September 1930
• Docket Number: No. 28463.,28463.
• Citation: 30 S.W.2d 1018
• Court: Missouri Supreme Court
• Parties: JOHN H. HULSEY v. TOWER GROVE QUARRY & CONSTRUCTION COMPANY, Appellant.

30 S.W.2d 1018

JOHN H. HULSEY v. TOWER GROVE QUARRY & CONSTRUCTION COMPANY, Appellant.

No. 28463.

Supreme Court of Missouri. Division One.

September 4, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. A.B. Frey, Judge.

AFFIRMED.

John T. Sluggett, Jr., and R.C. Brinkman for appellant.

(1) Witness who has stated that he has no knowledge of having seen the same act performed before under similar conditions is not competent to testify how many men were ordinarily or customarily used to perform a similar act. Kreagin v. Black, 292 Mo. 499. (2) An instruction which purports to cover the entire case and direct a verdict must contain within itself a submission of all the issues upon every phase of the evidence, and any failure on the part of the instruction in that respect is reversible error. Dunsmore v. Hartman, 256 S.W. 1031; Kassen v. Lusk, 277 Mo. 663; Duvall v. Cooperage Co., 275 S.W. 586. (a) Undue prominence and repetition in instructions constitute reversible error. Lund v. McClinton, 205 S.W. 241; Munsey v. Oil & Gas Co., 199 S.W. 687. (b) Instructions may not assume facts in dispute. Schull & Chipps v. Schneider, 258 S.W. 449; Jackson v. Anderson, 273 S.W. 429. (3) Where plaintiff fails to introduce evidence in support of some one of the allegations of specific negligence, defendant is entitled to have such unsupported charge of negligence withdrawn from the jury. Higgins v. Pulley Co., 240 S.W. 252. (4) Instruction must not be broader and must be within the purview of both the pleadings and the evidence. Miller v. Railroad, 180 Mo. App. 371; Degonia v. Railroad, 224 Mo. 564. (5) The verdict and judgment are excessive. Meyers v. Wells, 273 S.W. 110; Findley v. Wells, 260 S.W. 506; Schleef v. Schoen, 270 S.W. 410; Detchemendy v. Wells, 253 S.W. 150; Wilson v. Peppard Seed Co., 243 S.W. 390; Swinehart v. K.C. Rys. Co., 233 S.W. 59; Ossenberg v. Monsanto Chem. Co., 218 S.W. 421; Winterman v. United Rys. Co., 203 S.W. 486; Booker v. Railroad Co., 144 Mo. App. 273; McKee v. Donner, 261 Mo. 378; Aaron v. Met. St. Ry. Co., 159 Mo. App. 307; Dyrex v. Packing Co., 194 S.W. 761; Preston v. Railroad, 292 Mo. 442; Willis v. Quarries Co., 268 S.W. 102; Page v. Payne, 293 Mo. 600; Pietzuk v. Ry. Co., 289 Mo. 135.

Mark D. Eagleton, E.M.J. Clark and Hensley, Allen & Marsalek for respondent.

(1) The court properly permitted plaintiff to testify as to the number of men customarily used to carry a rock of the size he was carrying at the time of his injury, under the conditions, there obtaining. The objection urged, that plaintiff was not qualified by experience to answer the question, is not supported by the record. The record abounds with testimony showing plaintiff's experience in this character of work. Rigley v. Pryor, 290 Mo. 20; Benjamin v. Railroad, 245 Mo. 615; Huff v. Railroad, 213 Mo. 515; Rowe v. U. Rys. Co., 211 Mo. App. 541; Hamra v. Orten, 208 Mo. App. 43; Downs v. Racine Co., 175 Mo. App. 386; Harriman v. Dunham (Mo. App.), 196 S.W. 446; Gould v. Railroad, 315 Mo. 723; Authorities, Point 2(a), infra. (2) The court did not err in giving plaintiff's Instruction 4. (a) The plaintiff's testimony as to the number of men customarily used in this class of work under the conditions was sufficient to warrant the submission to the jury of defendant's negligence in failing to provide a sufficient number of men. Ternetz v. Cement Co., 252 S.W. 71; Meily v. Railroad, 215 Mo. 589. (b) The instruction requires the jury to find that the defendant, in failing to provide a sufficient number of men, "failed to exercise ordinary care and was guilty of negligence." This sufficiently required a finding that the defendant, by the exercise of ordinary care, could have known that the number of men provided was insufficient for the work. Berbcret v. Amusement Co. (Mo.), 3 S.W. (2d) 1027; Morton v. Const. Co., 280 Mo. 360; Peters v. Hooven & Allison Co., 281 S.W. 74; Clippard v. Transit Co., 202 Mo. 432; Young v. Iron Co., 103 Mo. 328; Crane v. Railroad, 87 Mo. 595; Hall v. Railroad, 74 Mo. 302; Totten v. Smith Bros., 3 S.W. (2d) 743; Johnson v. Ry. Co., 96 Mo. 340; Messing v. Drug Co., 18 S.W. (2d) 408. (c) The instruction was not erroneous in form, in repeating the admonition that the jury must find that the defendant was guilty of negligence in failing to furnish a reasonably sufficient number of men and a reasonably safe place before a verdict could be rendered for plaintiff. Wolfe v. Payne, 294 Mo. 170, affirmed 63 U.S. 239, 68 L. Ed. 284; Walter v. Cement Co. (Mo.), 250 S.W. 587; Johnson v. Foundry Co. (Mo.), 259 S.W. 442; Choka v. Power Co., 303 Mo. 132. (d) The instruction does not assume negligence on defendant's part. Agee v. Herring (Mo. App.), 298 S.W. 252; Liljegren v. U. Rys. Co. (Mo. App.), 227 S.W. 925; Balton v. Paper Co., 253 S.W. 433 (3) All the alleged errors relating to the defendant's negligence in failing to furnish a sufficient number of men are immaterial. Two acts of negligence were submitted in the conjunctive. No claim is made that the one was improperly submitted, or was not proven by competent evidence. Alleged errors relating to the other assignment of negligence are consequently immaterial. Secs. 1276, 1513, R.S. 1919; Woods v. Power Co. (Mo. App.), 212 S.W. 902; Agee v. Herring (Mo. App.), 298 S.W. 250; Schinogle v. Baughman (Mo. App.), 228 S.W. 900; Chambers v. Hines, 208 Mo. App. 222; Jackson v. Ry. Co., 171 Mo. App. 430; Williams v. Dairy Co. (Mo. App.), 285 S.W. 149, 289 S.W. 835. (4) The court did not err in refusing defendant's withdrawal Instruction No. 2. (a) Said instruction would have been confusing and misleading to the jury in withdrawing both of the charges of negligence submitted to them by plaintiff's Instruction 4. Komor v. Foundry Co. (Mo. App.), 300 S.W. 1028; Lathem v. Hosch, 207 Mo. App. 381; American Auto. Inc. Co. v. Rys. Co., 200 Mo. App. 317; Kinlen v. Railroad, 216 Mo. 145, 162; Schulz v. Smercina, 1 S.W. (2d) 119. (b) It is not error to refuse withdrawal instructions of this sort where the case is submitted to the jury upon a definite theory of negligence. Dietzman v. Screw Co., 300 Mo. 196, 215; Nahorski v. Ry. Co., 310 Mo. 227, 237; Denkman v. Fixture Co. (Mo.), 289 S.W. 591. (5) The court did not err in giving plaintiff's Instruction 5. (a) The instruction restricted the jury to the evidence before them, in assessing plaintiff's damages. That it authorized an award for loss of earnings not to exceed $21.50 per week, was not error, since it is presumed that the jury would follow the evidence on this subject, as they were directed to do. Freese v. Iron Co., 274 S.W. 778; Laycock v. U. Rys. Co., 290 Mo. 344; Davis v. Fleming (Mo. App.), 253 S.W. 798; Huhn v. Ruprecht (Mo.), 2 S.W. (2d) 763. (b) The petition prayed damages of $15,000, including $500 for medical expense. The jury awarded damages of $15,000, although there was no proof as to the amount of the medical expense. The remittitur of $3,500 from the verdict cured whatever error, if any, there was in this situation. Howell v. Jackson County, 262 Mo. 420; Pierce v. Lowder, 54 Mo. App. 25; McLean v. Kansas City, 81 Mo. App. 78; Ice Co. v. Tamm. 90 Mo. App. 189; Haworth v. Ry. Co., 94 Mo. App. 228; Middendorf v. Schrieber, 150 Mo. App. 537; Brohammer v. Lager (Mo. App.), 194 S.W. 1072. See, also: Southern etc. Railroad Co. v. Wyatt, 223 Mo. 356; Huhn v. Ruprecht (Mo.), 2 S.W. (2d) 760. (6) The verdict is not excessive. (a) The evidence on this subject should be taken in its light most favorable to plaintiff, all conflicts being conclusively settled by the jury's verdict. Manley v. Wells (Mo.), 292 S.W. 67; Busby v. Tel. Co. (Mo.), 287 S.W. 434; Westervelt v. Transit Co., 222 Mo. 325; Deland v. Cameron, 112 Mo. App. 710; Tucker v. Kollias (Mo.), 16 S.W. (2d) 649. (b) It is not the province of an appellate court, in any jury case, to weigh conflicting testimony. Gannon v. Gas Co., 145 Mo. 502; Reid v. Ins. Co., 58 Mo. 421, 429; Daniel v. Pryor (Mo.), 227 S.W. 104; Holzemer v. Ry. Co., 261 Mo. 411. (c) It was the peculiar province of the jury to determine the extent of plaintiff's injuries and the compensation he was entitled to recover therefor. Hoover v. Ry. (Mo.), 227 S.W. 79; Maloney v. U. Rys. Co. (Mo.), 237 S.W. 516; Sacre v. Ry. Co. (Mo.), 260 S.W. 88. (d) An appellate court will not interfere with the award of damages unless the amount "is so glaringly unsupported by the evidence as to shock the judicial sense of right or compel a conviction that the verdict was the result of prejudice, passion or bias." Manley v. Wells, supra; Laughlin v. Rys. Co., 275 Mo. 472; Grott v. Shoe Co., 2 S.W. (2d) 785.

SEDDON, C.

Plaintiff (respondent here) commenced this action on January 5, 1926, to recover damages for personal injuries alleged to have been suffered by him on December 10, 1925, by reason of defendant's negligence, and while plaintiff was employed by defendant (appellant here) as a laborer in defendant's rock quarry in the city of St. Louis. A trial of the action to a jury resulted in a unanimous verdict in favor of plaintiff in the sum of $15,000. The trial court ordered plaintiff to remit from the verdict the sum of $3,500, under penalty of sustaining defendant's motion for a new trial, and plaintiff complied with said order of the trial court by entering a remittitur for $3,500. Thereupon, judgment was entered in favor of plaintiff in the sum of $11,500, from which judgment defendant was allowed an appeal to this court.

The petition alleges, in substance, that defendant operated a rock quarry in the city of St. Louis; that on or about December 10, 1925, plaintiff was employed by defendant at said rock quarry, and, while plaintiff was engaged in his duties and was carrying and moving a large, heavy and unwieldy rock in and about the aforesaid quarry and through a narrow passageway or aisle therein, the floor of which passageway or aisle was covered with a wet, slick, slippery and slimy mixture...