Jost v. American Car & Foundry Co.
| Decision Date | 03 December 1922 |
| Docket Number | No. 22744.,No. 22743.,22743.,22744. |
| Citation | 246 S.W. 340 |
| Court | Missouri Supreme Court |
| Parties | JOST v. AMERICAN CAR & FOUNDRY CO. et al. (two cases). |
Appeal from St. Louis Circuit Court; 3'. Hugo Grimm, Judge.
Action by John Jost against the American Car & Foundry Company and Harry Nick. From a judgment for plaintiff against the American Car & Foundry Company and against plaintiff as to defendant Harry Nick, plaintiff and defendant car company appeal. Judgment reversed and remanded as to Harry Nice and affirmed as to the car company.
The plaintiff instituted this suit against the defendants in the circuit court of the city of St. Louis to recover the stale of $10,000 damages for personal injuries for the alleged negligence of the defendants in injuring him.
A trial was had before the court and jury which resulted in a verdict and judgment for the plaintiff for the sum of $6,000 against the car company and against the plaintiff and in favor of defendant Nick. After the defendant car company and the plaintiff moved unsuccessfully for a new trial, each duly appealed to this court.
Because of the fact the plaintiff sued for $10,000 against the defendant Nick and the fact that the plaintiff failed to recover any sum against him brought the case to this court, because of the amount involved. For this reason the Court of Appeals had no jurisdiction to hear that branch of the case. It naturally follows that it had no jurisdiction to decide the other branch, the one against the car company. Morton v. Southwestern Telegraph & Telephone Co., 280 Mo. 360, 217 S. W. 831.
By stipulation the causes were submitted together to this court as one case. The facts are practically undisputed and are as follows:
The plaintiff's evidence tended to show that he was in the employ of defendant American Car & Foundry Company, and that defendant Harry Nick was also in the employ of said defendant, and that Mr. Precht was the general foreman and the defendant Harry Nick was a gang foreman of defendant American Car & Foundry Company, and that both had authority to and did order and direct the plaintiff as to "his work; that Mr. Precht told the defendant Harry Nick to take plaintiff and two other men and cut some rivets off of a sample car; that defendant Harry Nick told plaintiff and two fellow workmen to come and cut the rivets off of this car, which was then located at defendant's Utah shed. When defendant Harry Nick and plaintiff and the other fellow workmen got to the Utah shed, the defendant Harry Nick said that he would get a sledge, and he went and got a sledge from Charlie Shuckmann, who, the evidence showed, was in the employ of defendant American Car & Foundry Company, and whose duty it was to and who had charge of and did keep the tools of defendant American Car & Foundry Company, and gave them out to the men, with which to work. When the defendant Harry Nick received the hammer, and before he used it, he took it and stamped the handle part of the hammer down a couple of times on a rail by holding one hand on the hammer and one hand on the handle, and hit it down on the railroad track. Harry Nick then told plaintiff to hold the chisel bar against a rivet, and he struck the chisel bar with the hammer two or three times, and the hammer dew off of the handle and hit plaintiff on the aide of the head, jaw, and neck, and seriously injured him.
The plaintiff did not notice anything wrong with the hammer. However, the plaintiff showed by other evidence of per sons who examined the hammer and its handle just after the plaintiff was injured, and who put the hammer back on the handle, that the hammer was not wedged on the handle, and that the handle was not shaped so that it would fit tight into the hammer, and just stuck into the head of the hammer without any wedge or anything to hold it; that it was just tapered down to the end and could be pulled out with the hands; and that after the accident the hammer was repaired by placing a steel wedge in it so that it would stay on.
The plaintiff requested two instructions numbered 1 and 2. The court gave instruction No. 1 asked by the plaintiff, but changed and modified instruction No. 2, which only affected defendant Harry Nick, and struck therefrom the words "or by the exercise of ordinary care could have known," so as to require the jury to find that the defendant Harry Nick actually knew that the hammer in question was loose on the handle at the time he struck the lick, and...
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