Johnson v. Ambursen Hydraulic Constructing Company

• Decision Date: 30 January 1915
• Citation: 173 S.W. 1081,188 Mo.App. 105
• Parties: ERR JOHNSON, Respondent, v. AMBURSEN HYDRAULIC CONSTRUCTION COMPANY, Appellant
• Court: Missouri Court of Appeals

173 S.W. 1081

188 Mo.App. 105

ERR JOHNSON, Respondent, v. AMBURSEN HYDRAULIC CONSTRUCTION COMPANY, Appellant

Court of Appeals of Missouri, Springfield

January 30, 1915

Appeal from Greene County Circuit Court.--Hon. Guy D. Kirby, Judge.

Judgment affirmed.

Lyon & Swarts, Dwight D. Currie and Mann, Todd & Mann for appellants.

The court erred in refusing to give instructions in the nature of demurrers to the evidence offered at the close of the plaintiff's case and at the close of the whole case because: (a) There was no evidence to show that the defendant was in charge of the work in which plaintiff was engaged or was the master of the plaintiff. Rubber Co. v Reinhardt, 88 Ill.App. 195; Miles v. Packers Assn., 41 Ore. 617, 69 P. 827. (b) The proximate cause of the injury to the plaintiff was not the failure to cover the scuttle or pit but was his negligence in going near the cogwheels while wearing a loose slicker coat when the wind was blowing a gale, and was not due to any neglect of duty upon the part of the appellant. The risk of injury by reason of the unguarded condition of cogwheels was a danger incident to the plaintiff's employment and he assumed such risk. Espenlaub v. Ellis, 72 N.E. 527, 34 Ind.App. 163; Jones v. Tobacco Co., 53 S.E. 848, 141 N.C. 202; O'Connor v. Whittall, 48 N.E. 844, 169 Mass 563; Mathias v. K. C. Stockyards, 185 Mo. 434; Bradley v. Railroad, 138 Mo. 293; Heibel v Bair, 103 Mo.App. 632; Jackson v. Railroad, 104 Mo. 448; McIntosh v. Railroad, 58 Mo.App. 285; Letanovsky v. Shoe Co., 157 Mo.App. 120; Musick v. Packing Co., 58 Mo.App. 322; Schroeder v. Car Co., 56 Mich. 132 (cited and approved in Bair v. Heibel, supra); Townsend v. Langlese, 41 F. 919 (cited and approved in Bair v. Heibel, supra); Russell v. Riverside Worsted Mills, 54 A. 375, 24 R. I. 591; Sullivan v. India Mfg. Co., 113 Mass. 396 (cited and approved in Bair v. Heibel, supra, also in Bradley v. Railroad, supra); Clarke v. Barnes, 37 Hun, 389 (cited and approved in Bair v. Heibel, supra); Stephenson v. Duncan, 73 Wis. 404 (cited and approved in Bair v. Heibel, supra); Sanborn v. Railroad, 35 Kan. 292, 10 P. 860, 861-2-3 (cited and approved in Bair v. Heibel, supra); Lore v. Mfg. Co., 160 Mo. 608; Lemoine v. Aldrich, 177 Mass. 89, 58 N.E. 178; Glavin v. Railroad, 213 Mass. 435, 100 N.E. 614; Demers v. Marshall, 178 Mass. 9, 59 N.E. 454; Wilson v. Mass. Cotton Mills, 169 Mass. 67, 47 N.E. 506; McIntire v. White et al., 171 Mass. 170, 50 N.E. 524; Goulding v. Eastern Bridge & Structural Co., 210 Mass. 52, 96 N.E. 71; O'Malley v. Gas Light Co., 158 Mass. 135, 32 N.E. 1119; Lumber & Timber Co. v. Mooney, 42 P. 952; Rock v. Indian Orchard Mills, 142 Mass. 552, 8 N.E. 401; Foley v. Pettee Machine Works, 149 Mass. 294, 21 N.E. 304; Tinkham v. Sawyer, 153 Mass. 485, 27 N.E. 6; Van Horn v. Railroad, 4 N. Y. St. 782; Wilson v. Cotton Co., 169 Mass. 67, 47 N.E. 506; Cunningham v. Iron Works, 92 Me. 501, 43 A. 106; Brown v. Mill Co., 22 Wash. 317, 60 P. 1126; Lumber Co. v. Bethea, 57 Ark. 76, 20 S.W. 808. (c) A servant cannot recover for an injury sustained merely on the ground that there was a safer way of conducting the business, the adoption of which would have prevented the injury. Stafford v. Railroad, 2 N.E. 185; Naylor v. Railroad, 11 N.Y. 24; Sanborn v. Railroad, 35 Kan. 292, 10 P. 860, 861, 862, 863 (cited and approved in Bair v. Heibel, supra); O'Connor v. Whittall, 48 N.E. 844, 169 Mass. 563; Bradley v. Railroad, 138 Mo. 293. (2) The court erred in permitting the witnesses to testify, over appellant's objection, as to who appeared to be in charge of the work of constructing the dam; such testimony was incompetent because it called for an opinion and conclusion of the witnesses, and the witnesses were not shown to have any knowledge of the subject. McCormack v. Herboth, 115 Mo.App. 193, 202; Rumsey v. Railroad, 154 Mo. 215, 250; Kendall Boot & Shoe Company v. Bain et al., 46 Mo.App. 581, 588; Krueger v. Railroad, 84 Mo.App. 358, 366; Dooner v. Canal Co., 164 Pa. 117, 30 A. 269; 17 Cyc. 219-222; Brady v. Rogan, 2 Willson Civ. Cas. Ct. App. Sec. 264 (Tex.); Gore v. Canada Life Assurance Co., 77 N.W. 650, 119 Mich. 136; Arndt v. Boyd, 48 S.W. 771; Building & Loan Assn. v. Winares, 60 S.W. 854, 24 Tex. Civ. App. 544; McCormick v. Mining & Milling Co., 63 P. 820, 23 Utah 71. (3) The appellant's motion to strike out the second count of the third amended petition should have been sustained. 31 Cyc. 433-34; Jones v. Whitney, 136 Mo.App. 683, 688; Ross v. Cleveland & Aurora Mineral Land Co., 162 Mo. 317; Riley v. Railroad, 124 Mo.App. 278; Sims v. Field, 24 Mo.App. 557; Heman v. Glann, 129 Mo. 325; Leise v. Meyer, 143 Mo. 547; Purdy v. Pfaff, 104 Mo.App. 331; Holliday v. Jackson, 21 Mo.App. 660, 664; Sears v. Loan Co., 56 Mo.App. 122; Railroad v. Wyler, 158 U.S. 285; Parmalee v. Railroad, 78 Ga. 441, 10 S.E. 113; Bolton v. Railroad, 83 Ga. 659, 10 S.E. 352; Railroad v. Campbell, 49 N.E. 314, 170 Ill. 163; Moniot v. Jackson, 81 N.Y.S. 688.

Watson & Page and Moore & Aubrey for respondent.

(1) The peremptory instruction requested by defendant was properly refused: (a) Because there was ample evidence that defendant was in charge of the boat, and that plaintiff was the servant of the defendant. Fleishman v. Ice and Fuel Co., 148 Mo.App. 117, and cases there cited; Carp v. Insurance Co., 203 Mo. 339; Stubbs v. Mulholland, 168 Mo. 80. (b) The open scuttle was the proximate cause of the injury to plaintiff. Holman v. Iron Co., 152 Mo.App. 672; Meade v. Railroad, 68 Mo.App. 92; Bassett v. St. Joseph, 53 Mo. 290; Brueggeman v. Fuel Co., 171 Mo.App. 59. (c) The plaintiff did not assume the risk, the danger being caused by the negligence of the master. Strother v. Milling Co., 169 S.W. 43; Crader v. Railroad, 164 S.W. 678; Gambino v. Coal and Coke Co., 164 S.W. 264; Obermeyer v. Chair Co., 229 Mo. 97; Strickland v. Woolworth, 143 Mo.App. 528; Jarrell v. Coal Co., 154 Mo.App. 552. (d) Nor will knowledge of the danger preclude a recovery, if caused by the master's negligence, unless the danger is so threatening that a person of ordinary prudence would refuse to longer remain in the master's service. Robbins v. Mining Co., 105 Mo.App. 78; Huhn v. Railroad, 92 Mo. 440; Pauck v. Provision Co., 159 Mo. 467; Corby v. Mo. & Kan. Tel. Co., 231 Mo. 417; Rogers v. Tegarden, 170 S.W. 675. (2) There was no error in permitting witnesses to testify as to who had charge of the work, such testimony not being conclusions, nor opinions, but facts. Fulton v. Railroad, 125 Mo.App. 239; McGinnis v. Printing Co., 122 Mo.App. 236; Partello v. Railroad, 217 Mo. 645; Kirchoff v. United Railways, 155 Mo.App. 70; Standley v. Railroad, 121 Mo.App. 544; Eyerman v. Shehan, 52 Mo. 221; Haymaker v. Adams & Son, 61 Mo.App. 581; Walker v. Davis, 83 Mo.App. 374; Madden v. Railroad, 50 Mo.App. 666; Construction Co. v. O'Brien, 81 Mo.App. 641; Taylor v. Jackson, 83 Mo.App. 649; Greenwell v. Crow, 73 Mo. 639.

(3) Appellant cannot complain of the action of the court in overruling its motion to strike out the second count of plaintiff's petition: (a) Because the amendment was not a departure, and was properly allowed under the rules of pleading. Lane v. Dowd, 172 Mo. 167; Lottman v. Barnett, 62 Mo. 170; Clothing Co. v. Railroad, 71 Mo.App. 241; Stewart v. Van Horn, 91 Mo.App. 655; Walker v. Railroad, 193 Mo. 477; Finer v. Nichols, 158 Mo.App. 539; Ingwerson v. Railroad, 150 Mo.App. 374; State ex rel. v. Bourne, 151 Mo.App. 104; Coleman v. Lumber Co., 105 Mo.App. 254; Knight v. Railroad, 120 Mo.App. 311. (b) But whether the amendment was properly allowed or not, the rights of defendant were waived by its answering and going to trial. Fuggle v. Hobbs, 42 Mo. 537; McAdow v. Railroad, 164 S.W. 188; Berkowski v. Janicke, 157 S.W. 125; Scovill v. Glasner, 79 Mo. 449; Grymes v. Lumber Co., 111 Mo.App. 361-2.

FARRINGTON, J. Robertson, P. J., and Sturgis, J., concur, the latter in a separate opinion.

OPINION

FARRINGTON, J.

--The plaintiff recovered a judgment against defendant for $ 7500 on account of personal injuries alleged to have been sustained by him while in the employ of the defendant.

Plaintiff in the original petition sought to recover damages on the charge that defendant negligently and carelessly failed to cover certain machinery consisting of cogwheels and shafts on a boat used on White river in the construction of a dam several miles up the river from Forsyth in Taney county, Missouri. The suit was brought against several defendants. A first amended petition was filed against three defendants, not necessary to be discussed. A second amended petition was filed consisting of two counts, one of the defendants named in the original petition and in the first amended petition being dropped. The first count charged negligence in failing to securely guard certain machinery. The second count sought recovery on the common-law liability of defendants in failing to furnish plaintiff a reasonably safe place in which to work, requiring him to perform duties at a place near the cogwheels where a hole in the floor of the boat, called a scuttle hole, was left open with no covering, alleging that owing to the position the plaintiff was required to assume in performing his duties by reason of the scuttle hole being left open he was subjected to unnecessary risk and hazard amounting to negligence on the part of his master. The third amended petition was filed against this defendant (appellant) and one other, the first count thereof going to the failure to securely guard the cogwheels and the second count proceeding on the common-law liability of the defendant for failure to furnish plaintiff a reasonably safe place in which to do his work.

At the conclusion of the evidence the plaintiff dismissed his suit as...