Kelso v. Ross Construction Co.
| Decision Date | 09 July 1935 |
| Docket Number | No. 32202.,32202. |
| Citation | 85 S.W.2d 527 |
| Court | Missouri Supreme Court |
| Parties | CHARLES KELSO v. W.A. ROSS CONSTRUCTION COMPANY, a Corporation, and M.J. Ross, Administrator of the Estate of W.A. Ross, who was formerly engaged in the business under the name of W.A. ROSS CONSTRUCTION COMPANY, Appellants. |
Appeal from Jackson Circuit Court. — Hon. T.H. Seehorn, Judge.
AFFIRMED (upon condition).
Harris & Koontz for appellants.
(1) The point is made by appellants that the court erred in refusing to give Instruction A offered by the defendants at the close of plaintiff's evidence, and in refusing to give Instruction A-1 offered by defendant M.J. Ross, Administrator, and in refusing to give Instruction A-2 offered by defendant W.A. Ross Construction Company, all of which were in the nature of peremptory instructions to find for the defendants jointly and severally, because the evidence showed the plaintiff to have been guilty of such contributory negligence on his part as a matter of law, to have prevented his recovery, and because the evidence showed that the plaintiff and the driver of the truck were fellow servants, and that the negligence, if any, chargeable against the truck driver was that of a fellow servant, and because as to the defendant W.A. Ross Construction Company the conditions show that the suit was originally brought before the death of W.A. Ross against the W.A. Ross Construction Company, and that no suit was ever brought against W.A. Ross as an individual and the petition filed was amended after the death of W.A. Ross, and the case continued against the W.A. Ross Construction Company, a corporation, together with M.J. Ross, Administrator of the Estate of W.A. Ross, deceased, because under the law there was no survival of the action, there having been no suit brought against W.A. Ross individually before his death. Sec. 3280, R.S. 1929; Heil v. Rule, 34 S.W. (2d) 90, 327 Mo. 84; Walker v. Ross, 71 S.W. (2d) 124; St. Louis v. Ry. Co., 50 S.W. (2d) 637, 330 Mo. 499; Hudson v. Cahoon, 193 Mo. 547, 91 S.W. 72; McGrew v. Ry. Co., 230 Mo. 511, 132 S.W. 76; Sec. 774, R.S. 1929; Hanson v. Neal, 215 Mo. 278, 114 S.W. 1073; Childs v. Ry. Co., 117 Mo. 426, 23 S.W. 373. (2) The point is made that the court erred in giving plaintiffs' Instruction 1 for the reason that the instruction permits and directs the jury to base its verdict upon the failure of defendant to equip the truck in question with a warning device, which was not a duty imposed upon the defendants, and which was not the alleged proximate cause of the injury to the plaintiff, and because the instruction broadens the issues as set out in plaintiff's amended petition. (3) The point is made of the error of the court in refusing to give instructions E and M, as these two instructions correctly define the duty and the only duty of the defendants with reference to furnishing a safe place to work, in that they set out the exception to the nondelegable duty charged by the plaintiff where the place at which the servant is working is one created by the servant himself and where the conditions of the place of work by reason of the character thereof, is constantly changing. Carter v. Wolfe, 296 S.W. 187; Rowden v. Mining Co., 136 Mo. App. 376, 117 S.W. 695; Kimberlin v. Telephone Co., 206 S.W. 430; McDonald v. Metal Co., 236 S.W. 418, 209 Mo. App. 23; Highfill v. Independence, 189 S.W. 801; Stone v. Ry. Co., 293 S.W. 367; Bradley v. Ry. Co., 138 Mo. 293, 39 S.W. 763; Meehan v. Ry. Co., 114 Mo. App. 396, 90 S.W. 102; Anderson v. Granite Co., 178 S.W. 737; Britt v. Crebo, 199 S.W. 154; Ziegenmeyer v. Cement Co., 113 Mo. App. 330, 88 S.W. 139; Bennett v. Lime Co., 146 Mo. App. 565, 124 S.W. 608; Cooney v. Gas Co., 186 Mo. App. 156, 171 S.W. 572; Hnskey v. Barter Co., 187 Mo. App. 438, 173 S.W. 16. (4) The point is made that the court erred in refusing to give Instruction O offered by defendants, for the reason that this instruction correctly sets out the rights and duties of the plaintiff and defendant with reference to the fellow servant law on the evidence offered in the case, because under the facts there was presented a submissible question of fellow servant correctly presented by this instruction. Benjamin v. Hager, 273 S.W. 754; Ring v. Ry. Co., 112 Mo. 220, 20 S.W. 436; Nugent v. Kauffman, 131 Mo. 241, 33 S.W. 428; McDermott v. Ry. Co., 87 Mo. 285; Guldner v. Shoe Co., 293 S.W. 428; Rowland v. Ry. Co., 20 Mo. App. 463; Guest v. Edison Illuminating Co., 114 N.W. 226; Lesh v. Tamarack Mining Co., 152 N.W. 1022; Bridges v. Ry. Co., 105 Pac. 586. (5) The point is made that the court erred in refusing to sustain the objection of defendants to certain prejudicial statements and improper argument of counsel for plaintiff, in that the court permitted plaintiff's counsel to comment upon the fact that the defendant had failed to call as witnesses certain persons who were not under the control of the defendants and who were equally available to both plaintiff and defendants. Rothchild v. Barck, 324 Mo. 1121, 26 S.W. (2d) 760; Duncan v. City Ice Co., 25 S.W. (2d) 536; Murphy v. Tumbrink, 25 S.W. (2d) 133; Atkinson v. Ry. Co., 286 Mo. 634, 228 S.W. 483; McIntyre v. Ry. Co., 286 Mo. 234, 227 S.W. 1047; Bergfeld v. Dunbar, 201 S.W. 640; Stubenhaver v. Ry. Co., 213 S.W. 144.
Cowgill & Popham and John F. Cook for respondent.
(1) The court did not err in permitting Dr. Mercer to answer the hypothetical question propounded to him. Raindge v. Ry. Co., 206 S.W. 395; Boyd v. Kansas City, 237 S.W. 1009; Garvey v. Piel, 43 S.W. (2d) 774; Brackett v. Black Masonry & Contracting Co., 32 S.W. (2d) 290; Radler v. Ry. Co., 51 S.W. (2d) 1011; Johnson v. Ry. Co., 233 S.W. 942; Weston v. Am. Natl. Assur. Co., 32 S.W. (2d) 789; Rockenstein v. Rogers, 31 S.W. (2d) 792; Francis v. West Plains, 226 S.W. 969. (2) The court did not err in permitting the witness Hollister to give his opinion as to whether there had been a slight or a large amount of violence applied to plaintiff's body. Raindge v. Ry. Co., 206 S.W. 395; Boyd v. Kansas City, 237 S.W. 1009; Garvey v. Piel, 43 S.W. (2d) 774; Brackett v. Black Masonry Co., 32 S.W. (2d) 288; Radler v. Railroad Co., 51 S.W. 1011; Johnson v. Ry. Co., 233 S.W. 942; Weston v. Am. Natl. Assur. Co., 32 S.W. (2d) 789; Spann v. Coal & Mining Co., 16 S.W. (2d) 200; Rockenstein v. Ry. Co., 31 S.W. (2d) 792; Francis v. West Plains, 226 S.W. 969; Summers v. Cordell, 187 S.W. 5. (3) The court did not err in refusing to give Instruction A-2, Instruction B, or in giving Instruction 3, as claimed by appellants. Shufeldt v. Smith, 40 S.W. 887; Quinn v. Am. Bankers Ins. Co., 165 S.W. 823; Pittman v. Chicago-Joplin Lead & Zine Co., 87 S.W. 11; Aubertine v. Feinberg, 258 S.W. 46; Leckie v. Bennett, 141 S.W. 706; McPike v. Kardell, 213 S.W. 904; Brown & Sons Contracting Co. v. Bambrick, 131 S.W. 134; Kincaid v. Birt, 29 S.W. (2d) 97; In re McMenany's Guardianship, 270 S.W. 662; Ostrander v. Messmer, 289 S.W. 609. (4) Plaintiff was not guilty of contributory negligence as a matter of law. Davison v. Hines, 246 S.W. 295; Torrence v. Pryor, 210 S.W. 430; Herrod v. Ry. Co., 299 S.W. 74; State v. Allen, 272 S.W. 925; Macklin v. Fogel Const. Co., 31 S.W. 14; Whittington v. Westport Hotel Co., 33 S.W. (2d) 968; Davis v. Independence, 49 S.W. (2d) 98; Clayton v. Wells, 26 S.W. (2d) 973; Nelson v. Heinie Boiler Co., 20 S.W. (2d) 906; Johnson v. Bowes-Kiel Const. Co., 22 S.W. (2d) 881; Messing v. Judge & Dolf Drug Co., 18 S.W. (2d) 408. (a) Answer to appellants' claim that the instructions in the nature of demurrers to the evidence should have been sustained because of the claim that as a matter of law the proximate cause of plaintiff's injury was the negligence of a fellow servant. Carter v. Wolfe, 296 S.W. 189; Coy v. Dean, 4 S.W. (2d) 835; Cunningham v. Doe Run Lead Co., 26 S.W. (2d) 957; Gettys v. Am. Car & Foundry Co., 16 S.W. (2d) 88; Koerner v. St. Louis Car Co., 107 S.W. 481; Bender v. Kroger Grocery Co., 276 S.W. 405; Johnson v. Brick & Coal Co., 205 S.W. 615; Landcaster v. Natl. E. & S. Co., 1 S.W. (2d) 238; Wack v. Schoenberg Mfg. Co., 53 S.W. (2d) 28; Klaber v. Fidelity Bldg. Co., 19 S.W. (2d) 758; Perryman v. Railroad Co., 31 S.W. (2d) 4; Burch v. Ry. Co., 40 S.W. (2d) 688; Moffett v. Butler Mfg. Co., 46 S.W. (2d) 869; Pavlo v. Forum Lunch Co., 19 S.W. (2d) 510; Spotts v. Spotts, 55 S.W. (2d) 977; Boyd v. St. Louis Brewing Assn., 5 S.W. (2d) 46; Lyons v. Natl. Surety Co., 147 S.W. 778; Orlando v. Surwald, 47 S.W. (2d) 228; R.S. 1929, sec. 893; White v. Hoffman, 52 S.W. (2d) 830; State v. Trimble, 53 S.W. (2d) 1033; Wolford v. Scarbrough, 21 S.W. (2d) 777; Baker v. Crandall, 78 Mo. 591; Woolston v. Blythe, 251 S.W. 145. (5) The court did not err in giving plaintiff's Instruction 1. Anderson v. Asphalt Distributing Co., 55 S.W. (2d) 688; Berry v. Ry. Co., 43 S.W. (2d) 782; Grubbs v. K.C. Pub. Serv. Co., 45 S.W. (2d) 71; Lepchenski v. Railroad Co., 59 S.W. (2d) 610; McIntyre v. Railroad Co., 227 S.W. 1047; Webster v. International Shoe Co., 18 S.W. (2d) 131. (6) The court did not err in refusing Instruction E or Instruction M. Albert v. United Rys. Co., 232 S.W. 793; Stermolle v. Brainerd, 24 S.W. (2d) 712; Allen v. Railroad Co., 294 S.W. 80; Lee v. Shryack-Wright Grocery Co., 53 S.W. (2d) 406; Carter v. Wolfe, 296 S.W. 187; Gettys v. Am. Car & Foundry Co., 16 S.W. (2d) 85. (7) The trial court did not err in refusing to give Instruction O. Albert v. United Rys. Co., 232 S.W. 793; Bollinger v. Curtis, 249 S.W. 907; Hicks v. Vieths, 46 S.W. (2d) 604; Berry v. Ry. Co., 26 S.W. (2d) 988; Gettys v. Am. Car & Foundry Co., 16 S.W. (2d) 89; Whittington v. Westport Hotel Oper. Co., 33 S.W. (2d) 963; Koonse v. Railroad Co., 18 S.W. (2d) 467; Koerner v. St. Louis Car Co., 107 S.W. 481; Genta v. Ross, 37 S.W. (2d) 969; Carter v. Wolfe, 296 S.W. 187. (8) The court did not err during the closing argument of the jury as claimed by appellants, under Point X of their...
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