McDonald v. Central Illinois Construction Co.
| Decision Date | 06 November 1916 |
| Citation | 190 S.W. 633,196 Mo.App. 57 |
| Parties | ROBERT B. McDONALD, Respondent, v. CENTRAL ILLINOIS CONSTRUCTION COMPANY et al., Appellants |
| Court | Missouri Court of Appeals |
Argued and Submitted, October 24, 1916
Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow Judge.
AFFIRMED.
Judgment affirmed.
Anderson Gilbert & Levy for appellant, Central Illinois Construction Company.
John B Hardaway for appellant, St. Louis Electric Bridge Company.
(1) The court erred in overruling the demurrers to the evidence. Plaintiff was ordered to shore the ditch and it is an absurdity to say that the master should have shored so that the plaintiff could do the work of shoring. Henson v. Pack. Co., 113 Mo.App. 621; Miller v. Walsh, 145 Mo.App. 135; Batty v. Power Co., 79 N. Y. App. 47; Coal Co. v. Bruzas, 223 Ill. 601. Where a servant does not say anything to the master about a situation he thinks dangerous, he cannot recover for injuries therefrom. Warmington v. Railroad, 46 Mo.App. 170; Harris v. Railroad, 40 Mo.App. 265. Where the servant trusts to his own judgment, there is no recovery. Jones v. Cooperage Co., 134 Mo.App. 329. And where the interpreting facts are undisputed, he will not be permitted to say he relied on the master. Knorpp v. Wagner, 195 Mo. 668, 665. When the order to shore was given, plaintiff thought the bank was dangerous and likely to fall if not shored and said nothing to the foreman about the danger. In these circumstances no recovery can be had. Haviland v. Railroad, 172 Mo. 106, 117. He does not in such circumstances rely on an assurance of safety from the master. In addition to the fact that plaintiff says he understood the wall was likely to fall, the order to shore in itself was notice of the danger. Henson v. Pack. Co. 113 Mo.App. 621. (2) The court erred in giving instructions numbers 3 and 7 of its own motion. (a) Instruction 3 assumes that defendants were negligent. By it the jury are told there can be no recovery if the "injury sustained by plaintiff, if any, was the result of an accident and not the negligence of the defendants, as explained in other instructions." The instruction says injury, "if any," but assumes the negligence. Such assumptions are erroneous: Bryan v. Lamp Co., 176 Mo.App. 729; Stone v. Hunt, 94 Mo. 475, 480; Comer v. Taylor, 82 Mo. 341, 347; Plummer v. City, 70 Mo.App. 601; Glover v. Railroad, 129 Mo.App. 563, 575; York v. Everton, 121 Mo.App. 645; Muncie v. Bevier, 124 Mo.App. 15; Evans v. City, 76 Mo.App. 22; Morrell v. Lawrence, 203 Mo. 363, 380. (b) This instruction does not correctly state the law. Verdict should not be for defendants only in event the plaintiff's injuries resulted from accident and not from "the negligence of defendants," but must be for defendants if the injuries did not result from the particular acts pleaded. By this instruction 3 the jury are told to find a verdict for defendants if plaintiff's injuries resulted from accident and "not the negligence of the defendants, as explained in other instructions." There are no other instructions explaining the "negligence of defendants" and this instruction is reversible error. By instruction 7 ordinary care is defined and the jury are told "the omission of such care is negligence in the sense in which that word is used in these instructions." If instruction 7 be taken as defining defendants' negligence, then a verdict is authorized for omission to use ordinary care and this is broader that the petition. A verdict cannot stand where there are specific allegations of negligence, and the instruction merely authorizes a recovery for failure to use care. Beave v. St. Louis Transit Co., 212 Mo. 331, 351; Abbott v. Railroad, 83 Mo. 271, 278; Price v. Railroad, 72 Mo. 414, 419; Dalton v. Refining Co., 188 Mo.App. 529, 548; Feldeworth v. Railroad, 181 Mo.App. 640; Clark v. Motor Car Co., 177 Mo.App. 623, 628, 629; Crone v. St. Louis Oil Co., 176 Mo.App. 344, 349; Bryan v. Lamp Co., 176 Mo.App. 728. (3) The court erred in admitting evidence of plaintiff's inexperience. There is no averment in the petition under which this evidence was admissible. It is true there is an allegation he was inexperienced, but this inexperience is in no way alleged to be connected with plaintiff's injuries and such causal connection is essential. Bryan v. Lamp Co., 176 Mo.App. 716, 728. (4) The court erred in giving instruction number 2 on the measure of damage. By this the jury are directed to allow plaintiff his "loss, if any, of the earnings of plaintiff's work as a laborer." Plaintiff, who is entitled to recover, cannot recover his loss of earnings from a particular occupation. He may have worked at some other occupation (as plaintiff did). The proper measure is the difference between his earnings, no matter from what occupation he may have subsequently derived an income. (5) The court erred in refusing to give instruction number 25, directing the jury they could allow plaintiff nothing for permanent insomnia. This element of damage was pleaded and the petition was read at length to the jury. No evidence was offered to prove it and the jury should have been directed, as requested, to allow nothing of it. Where defendant desires a specific instruction it must be asked. Fisher v. Transit Co., 198 Mo. 591. (6) The verdict is against the law, and the evidence, and was the result of passion and prejudice on the part of the jury. A verdict contrary to the instructions cannot stand. Allen v. Transit Co., 183 Mo. 411, 432; Rafferty v. Railroad, 15 Mo.App. 559. (7) The court erred in overruling the applications for a continuance. Defendant did not come into court prepared to meet a charge of plaintiff's inexperience, but to meet those charges pleaded, namely, negligence in not shoring, thereby making the place unsafe. Defendant is not supposed to anticipate unpleaded acts. McDonald v. Const. Co., 183 Mo.App. 415; Trigg v. Lbr. Co., 187 Mo. 237; Compton v. Railroad, 147 Mo.App. 420.
Earl M. Pirkey for respondent.
(1) Where the master directs the servant to work in an unbraced trench and the trench caves in and injures the servant because unbraced, the master is liable. Barnard v. Waverly Brick and Coal Company, 189 Mo.App. 417; Quigley v. Bambrick, 58 Mo.App. 192; Carter v. Baldwin, 107 Mo.App. 217; Scott v. City of Springfield, 81 Mo.App. 312; Deweese v. Meramec Iron Co., 54 Mo.App. 476, 128 Mo. 423; Etledge v. Railroad, 100 Cal. 282; Finn v. Cassidy, 165 N.Y. 584; City of Chattanooga v. Powell, 179 S.W. 808, 133 Tenn. 137. (2) The rulings made on a former appeal are the law of the case when it comes before the court on a second appeal; and all matters passed upon in the former decision will be deemed res adjudicata and no longer open for dispute. Chapman v. Railroad 146 Mo. 494; Miller v. Town of Canton, 123 Mo.App. 333; Brummell v. Harris, 162 Mo. 403. (3) The servant assumes such risks only as are incident to work after the master has performed his full duty. Fleming v. What Cheer Mining Company, 186 S.W. 1115; Erwin v. Tel. Co., 173 Mo.App. 535; Bennett v. Lime Company, 146 Mo.App. 575; George v. Railroad, 225 Mo. 406; Jewell v. Bolt and Nut Company, 231 Mo. 199; Strickland v. Woodworth & Co., 143 Mo.App. 528. (4) Where eleven or more instructions are asked, the trial court is justified in refusing all or any number less than all of those asked on the ground of their number alone. Renshaw v. Fireman's Ins. Co., 33 Mo.App. 400; Barrie v. Transit Company, 119 Mo.App. 52; McAllister v. Barnes, 35 Mo.App. 674; Cutts v. Davidson, 184 S.W. 921; Sidway v. Missouri Land and Live Stock Co., 163 Mo. 376. (5) It is not error to refuse a cautionary instruction unless there is an abuse of discretion. Wiedemann v. St. Louis Taxicab Company, 182 Mo.App. 529. (6) It is not error to refuse any instruction where its substance is covered by an instruction given. Wiedemann v. Taxicab Co., 182 Mo.App. 529; Flaherty v. Transit Co., 207 Mo. 338; Trebbe v. American Steel Foundries, 185 S.W. 179; Missouri Valley Bridge and Iron Co. v. Blake, 231 F. 417. (7) A servant injured in doing work is not chargeable with selecting the more dangerous method of work where he is doing it as ordered by the master's foreman. Henson v. Pascola Stove Co., 190 Mo.App. 471; Barnard v. Waverly Brick and Coal Co., 189 Mo.App. 421; Erwin v. Telephone Co., 173 Mo.App. 532. (8) Where the master has negligently failed to furnish safe appliances or a safe place, and the servant knows it, he can still recover unless the danger is so glaringly threatening that a man of ordinary prudence would not use them. Bennett v. Lime Co., 146 Mo.App. 575; Carter v. Baldwin, 107 Mo.App. 217; Wendler v. People's Housefurnishing Co., 165 Mo. 527; George v. Railroad, 225 Mo. 411; Jewell v. Bolt and Nut Co., 321 Mo. 201. (9) The law does not permit a party litigant to assume inconsistent positions in court. Bensieck v. Cook 110 Mo. 182. (10) The court will not reverse a judgment for an error not called to the attention of the trial court in the motion for a new trial. Gardner v. Met. St. Ry. Co., 223 Mo. 413. (11) Two successful trials in the same case are evidence of merit of respondent's case. In re Estate of Imboden, 128 Mo.App. 575 (12) Instruction No. 3 given by the court of its own motion was approved by this court. Fogus v. Railroad 50 Mo.App. 272.
Suit for damages for personal injuries resulting to plaintiff in consequence of an earth embankment caving in upon him while he was working in a trench at the base. He recovered judgment for $ 4200 against the defendants, Central Illinois Construction Company and St. Louis Electric Bridge Company and both of them have...
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