McDonald v. Central Illinois Const. Co.

• Decision Date: 05 May 1914
• Docket Number: No. 13602.,13602.
• Citation: 183 Mo. App. 415,166 S.W. 1087
• Parties: McDONALD v. CENTRAL ILLINOIS CONST. CO.
• Court: Missouri Court of Appeals

166 S.W. 1087

183 Mo. A. 415

McDONALD v. CENTRAL ILLINOIS CONST. CO.

No. 13602.

St. Louis Court of Appeals. Missouri.

May 5, 1914.

1. PLEADING (§ 93)—INJURIES TO SERVANT— DEFENSES—CONTRIBUTORY NEGLIGENCE—ASSUMED RISK—ELECTION.

In an action for injuries to a servant, pleas of contributory negligence and assumed risk were not inconsistent with a general denial, and hence it was error to compel defendant to elect between the general denial and such special pleas.

2. MASTER AND SERVANT (§ 264)—INJURIES TO SERVANT—PLEADING—ASSUMED RISK.

In an action for injuries to a servant, assumed risk is an affirmative defense that must be specially pleaded, and is not covered by a general denial.

3. PLEADING (§ 426)—DEFENSES—ELECTION— WAIVER.

Where defendant in an action for injuries to a servant pleaded a general denial, contributory negligence, and assumed risk, and was erroneously required to elect as between the general denial and such special pleas, its election to rely on the general denial, and its going to trial did not constitute a waiver of its exception to the court's action in compelling it to elect.

4. APPEAL AND ERROR (§ 500)—RULINGS BEFORE TRIAL—PRESERVATION.

Where defendant, in an action for injuries to a servant, was required before trial to elect as between a general denial and affirmative pleas of contributory negligence and assumed risk, its exception to such ruling was properly saved by a term bill carried over into the final bill of exceptions, and in the motion for new trial.

5. MASTER AND SERVANT (§ 264)—INJURIES TO SERVANT—ISSUES AND PROOF.

Where, in an action for injuries by the caving in of a ditch while attempting to shore up one of the sides, there was no averment that plaintiff lacked knowledge of the danger, or that he was inexperienced and ignorant of the work he was ordered to do, evidence that plaintiff was unaware of the danger by reason of his inexperience, ignorance, or unfamiliarity with the particular line of work, etc., was inadmissible.

6. CONTINUANCE (§ 31)—INJURIES TO SERVANT —ACTION—PLEADING—VARIANCE — ADMISSION OF EVIDENCE.

Where, in an action for injuries to a servant by the caving in of a trench in which he was employed, the petition charged as negligence that defendant's foreman ordered plaintiff to dig in the trench, which was unsafe because defendant had negligently failed to shore it, and there was no allegation that plaintiff was inexperienced or that defendant was negligent in sending plaintiff, an inexperienced man into the ditch to shore it up, the admission of evidence that at the moment of the accident plaintiff was engaged in shoring up the ditch, that he was inexperienced, and that defendant was negligent in ordering him to perform such work, constituted a variance for which defendant, on proper application, was entitled to a continuance for surprise.

7. TRIAL (§ 202) — INSTRUCTIONS — DUTY TO GIVE.

While the trial court in a civil case is not bound to give instructions in the absence of requests to do so, it should nevertheless in the exercise of its sound discretion charge the jury on the law of the case.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Robert B. McDonald against the Central Illinois Construction Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Roscoe F. Anderson, of St. Louis, for appellant. Earl M. Pirkey, of St. Louis, for respondent.

REYNOLDS, P. J.

The petition in this case, seeking damages for injuries to plaintiff, alleged to have been sustained on the 8th of March, 1910, in consequence of the sliding of a bank of a trench in which plaintiff at the time was working in an attempt to shore up the side, avers that for a long space of time next prior thereto, the excavation or place where plaintiff was digging was dangerous and not a reasonably safe place for him to be in while doing the work of his employment, because the sides or walls of the excavation were not shored or propped in any way, and there was nothing to prevent the dirt, stones, etc., composing the soil at and near the excavation, and part of which composed the sides or walls of the excavation, from moving into the excavation, and there was palpable danger of the soil, etc., moving into the excavation unless prevented by shoring or braces or other effective means. "That defendant knew, or by the exercise of ordinary care would have known of the aforesaid dangerous and unsafe condition of said excavation, soil and place where, as aforesaid, plaintiff was digging, and of the danger to plaintiff therefrom while in said excavation, in time, by the exercise of ordinary care, to have remedied said condition and averted the injuries hereinafter mentioned, to plaintiff, yet it negligently failed to do so, but negligently maintained said excavation, the sides thereof, and said soil in the aforesaid dangerous and unsafe condition at and for a long time next prior to the time plaintiff was injured on March 8, 1910, hereinafter mentioned, and negligently sent him into said excavation to work, all without protection or notice of any kind to him, and negligently failed to furnish him a reasonably safe place in which to do the work of his said employment under defendant." Averring that on the date above mentioned, by reason of the negligence of the defendant above mentioned, and while plaintiff was in the excavation at work digging in the discharge of the duty of his employment under the defendant, part of the dirt, stones and objects composing the soil at and near the excavation, because of the dangerous and unsafe condition of the excavation, soil, and place where plaintiff was digging, moved into the excavation upon and against plaintiff, thereby injuring him, describing his injuries, to his damage, etc.

The answer to this, after a general denial, avers, first, that the injuries alleged to have been sustained by plaintiff were the direct result of such danger as is ordinarily incident to the employment in which plaintiff was engaged at the time of his injury and that the risk of the injury was assumed by plaintiff by engaging in the employment; second, that the injuries received by plaintiff were the direct result of his own negligence in negligently, voluntarily and unnecessarily entering the excavation, when he might have adopted a safer method of doing his work and shoring up the excavation without entering the same, and that plaintiff was further negligent in that he had voluntarily entered the excavation after being warned by defendant to remain out of it.

Plaintiff filed a motion to require defendant to elect whether it would stand on its general denial or on the remaining defenses pleaded. The court sustained this motion and required defendant to elect. Saving its exception to this action of the court, defendant elected to stand on the general denial. The cause accordingly went to trial on the petition and general denial.

During the progress of the trial and over the objection and exception of defendant, plaintiff was allowed to testify that he had been told by the foreman to go into the trench and shore up one side of it, and that he did not understand that work. Asked by his counsel if he knew anything about shoring, plaintiff answered that he did not. These two answers, evidently made while defendant was interposing its objections, were duly objected to by defendant, on the ground that they were immaterial and incompetent for the reason that there is no such issue as the ignorance and inexperience of plaintiff presented by the petition; no allegation that plaintiff was ignorant of the work; hence incompetent testimony under the issues in the case. Exception was duly saved to the admission of this testimony. Plaintiff was afterwards asked by his counsel it he had had any experience in excavating dirt. This was duly objected to for the reasons above stated and the objection being overruled and defendant duly excepting, plaintiff was permitted to answer that he had not then had any experience at all in that kind of work.

At the close of the testimony for plaintiff, defendant interposed a demurrer which was overruled, defendant saving exception. Defendant thereupon filed an affidavit that it had been misled and had not had an opportunity to properly prepare a defense to the new issue raised by variance between the petition and the new issue raised by the admission of evidence, the variance claimed being this: "That the proof brought out by the plaintiff * * * has varied from the allegations of the petition to such an extent that defendant has been misled to its prejudice in this, to wit: Plaintiff's petition charges as its ground of negligence on the part of defendant that defendant's foreman ordered plaintiff to dig in a trench which was unsafe because of the fact that defendant had failed to shore same, and because of such failure to shore defendant was negligent; however the proof shows that at the very moment of the accident the plaintiff was engaged in the work of shoring up said ditch and that the defendant was negligent in ordering an inexperienced man to the work of shoring up." Wherefore defendant moved for a continuance of the cause. This was overruled, defendant excepting. Defendant thereupon introduced a witness and rested. The jury returned a verdict for plaintiff, judgment following. Filing its motion for new trial and excepting to the action...