Messing v. Judge & Dolph Drug Co.

Decision Date18 May 1929
Docket NumberNo. 27621.,27621.
Citation18 S.W.2d 408
CourtMissouri Supreme Court

Appeal from Circuit Court of City of St. Louis. Hon. William H. Killoren, Judge.


S.T.G. Smith for appellant.

(1) In a suit by a servant against the master, where the negligence alleged is failure to furnish the servant with a safe place to work, an instruction which fails to require the jury to find that the master knew, or by the exercise of ordinary care could have known, of the unsafe condition of the place furnished the servant in which to work, is erroneous. State ex rel. v. Ellison, 272 Mo. 571; Burnes v. Ry. Co., 129 Mo. 41; Wojtylak v. Coal Co., 188 Mo. 260; Removich v. Construction Co., 264 Mo. 43; Howard v. Railway Co., 173 Mo. 524; Hester v. Packing Co., 84 Mo. App. 451; Manche v. Box & Basket Co., 262 S.W. 1021. (2) The law will not permit a recovery where the plaintiff by his own negligence has contributed to produce the injury from which he suffered; and where the plaintiff's own case clearly established contributory negligence on the part of the plaintiff it is the duty of the court to take the case from the jury, and where such facts exist the appellate court should reverse the case without remanding. Ward v. Car & Foundry Co., 293 S.W. 493; Zumault v. Railroad Co., 175 Mo. 288; Roberts v. Telephone Co., 166 Mo. 370; Murphy v. Railroad Co., 228 Mo. 56. (3) Where plaintiff's evidence fails to establish a causal connection between the accident and the negligence charged, the court should take the case from the jury. Dyer v. Building & Contracting Co., 258 S.W. 48; Removich v. Construction Co., 264 Mo. 43; Wojtylak v. Coal Co., 188 Mo. 260; Van Bibber v. Swift & Co., 286 Mo. 317; Strother v. Railway Co., 188 S.W. 1102. (4) It is error to give an instruction where the wording of such instruction is involved, misleading, confusing and unintelligible. (5) Where the evidence shows that the plaintiff is an unmarried woman, thirty-eight years of age, and had worked for one concern for fifteen years continuously, and was at the time of the alleged injury making $15 per week, and the evidence further shows that the plaintiff was never very healthy at any time, and had been a delicate woman for many years, and the evidence is not conclusive as to the permanence of the injury, and the evidence further shows that the plaintiff had begun to improve six months before the trial and had gained twelve pounds in weight in the last three or four months, and the evidence further shows that plaintiff was permitted at the trial to exhibit her naked body to the jury trying the case, and the jury returned a verdict for $25,000, which the court subsequently reduced by enforced remittitur to $18,000, said verdict and judgment for $18,000 is excessive, and the verdict the result of passion and prejudice rather than sound consideration on the part of the jury, and should be reversed. Miller v. Schaff, 228 S.W. 488.

Mark D. Eagleton and Hensley, Allen & Marsalek for respondent.

(1) The trial court did not err in refusing to hold that plaintiff was guilty of contributory negligence as a matter of law. (a) Plaintiff was not negligent, as a matter of law, in using the passageway, even though she knew the boxes were loosely and carelessly piled. Such a conclusion is warranted only where the danger is so glaring and obvious as to threaten immediate and almost certain injury. Compton v. Const. Co., 315 Mo. 1087; Brown v. Mill Co. (Mo. App.), 217 S.W. 334; Jewell v. Bolt & Nut Co., 231 Mo. 199; Edmondson v. Hotel Co., 306 Mo. 231; Clippard v. Transit Co., 202 Mo. 446. (b) In view of the admission of defendant's manager that he saw the box piles every day, it cannot be said, as a matter of law, that plaintiff's failure to notify him of the condition thereof was the producing and efficient cause of her injury, absent which it would not have occurred. Hires v. Grocery Co. (Mo.), 296 S.W. 411; Cabanne v. Car Co., 178 Mo. App. 731; Dickson v. Ry. Co., 124 Mo. 140; Lockhart v. Steel Co., 165 Ala. 516; West v. Mill Co., 149 Wis. 145; Ward v. Lumber Co., 54 Wash. 304. (c) It was the jury's province to believe or disbelieve any part of the testimony. Anderson v. Davis, 314 Mo. 515; Zlotnikoff v. Wells, 220 Mo. App. 869; Gould v. Railroad., 315 Mo. 713; Rine v. Railroad, 100 Mo. 228; Kame v. Railroad, 254 Mo. 196. (d) If the jury believe that the superintendent was aware of the habitually careless manner in which the boxes were piled, plaintiff's failure to notify him thereof was an immaterial factor in the situation, and could not have been the efficient and producing cause of her injury. Authorities (b) supra; Peterson v. Rys. Co., 270 Mo. 67. (e) Furthermore, defendant in its answer did not plead that plaintiff was negligent in failing to notify defendant of the unsafe condition of the box piles, and therefore defendant is precluded from raising that question on appeal. Plannett v. McFall (Mo. App.), 284 S.W. 850; Simpson v. Wells, 292 Mo. 328; Azar v. Railroad, 251 S.W. 453; Shelby v. Ins. Co., 262 S.W. 686; Ellis v. Ry. Co., 234 Mo. 676; Chinn v. Naylor, 182 Mo. 594; Mirrieless v. Railroad, 163 Mo. 486. (2) The evidence was sufficient to show a causal connection between defendant's negligence and plaintiff's injury. It was not necessary for plaintiff to prove this element of her case by direct evidence. The matter was one of inference from the facts shown. Settle v. Railroad, 127 Mo. 336; Dakan v. Mercantile Co., 197 Mo. 238; Collingsworth v. Zinc Co., 260 Mo. 703; Longree v. Mfg. Co., 120 Mo. App. 478; Osborn v. Nelson, 141 Mo. App. 428; Clonts v. Electric Co., 160 Mo. App. 456; Cabanne v. Car Co., 178 Mo. App. 718; Natt v. Aiken (Mo. App.), 212 S.W. 58; Jaquith v. Plumb (Mo.), 254 S.W. 89; Berkbigler v. Milling Co. (Mo. App.), 275 S.W. 602; Byers v. Carnegie Co., 159 Fed. 347; Oglesby v. Railroad (Mo.), 1 S.W. (2d) 172. (3) The court did not err in giving plaintiff's Instruction 1. (a) The instruction requires the jury to find that defendant negligently furnished and provided plaintiff a place of work which was unsafe and dangerous, because of the disorderly, insecure and indiscriminate manner in which the boxes were piled and the likelihood that such boxes would by reason thereof fall and cause injuries. A finding of negligence in furnishing a place or appliance for the servant's use, imports prior knowledge. Berberet v. Amusement Co. (Mo.), 3 S.W. (2d) 1027; Morton v. Const. Co., 280 Mo. 360; Peters v. Hooven & Allison Co. (Mo. App.), 281 S.W. 71; Clippard v. Transit Co., 202 Mo. 432; Young v. Iron Co., 103 Mo. 328; Crane v. Railroad, 87 Mo. 588; Hall v. Railroad, 74 Mo. 302; Totten v. Smith Bros. (Mo. App.), 3 S.W. (2d) 743; Johnson v. Ry. Co., 96 Mo. 340. (b) The condition of the box piles was one of long standing. It was defendant's personal, non-delegable and continuous duty to furnish plaintiff a safe place, and the jury found that it negligently failed to do so. Sneed v. Hardware Co., 242 S.W. 699; Amis v. Standard Oil Co., 233 S.W. 195; Soltesz v. Packing Co., 260 S.W. 990. (c) By defendant's instructions its liability is made to depend not upon any question of its knowledge of the condition of the box piles, but solely upon the question of whether it furnished plaintiff a reasonably safe place to work. This was defendant's trial theory, and defendant is bound by it. Authorities, point 1 (e), supra. (d) By its answer, defendant conceded that the conditions at this place, including the manner in which the boxes were piled, were discoverable by the exercise of ordinary care. By this admission, any question of defendant's prior knowledge thereof was withdrawn from the realm of controversy, and the court could rightfully have assumed said fact, or omitted it from the instructions altogether. Grott v. Shoe Co. (Mo.), 2 S.W. (2d) 785; McKenzie v. U. Rys. Co., 216 Mo. 1, 19; Milward v. Railroad Co., 207 Mo. App. 345. (e) The instruction requires the jury to find that the boxes were piled indiscriminately and in disorder, and were likely to fall as a result; that the boxes so piled fell and struck plaintiff and caused her to be injured; that she was injured in the manner aforesaid by reason of defendant's negligence in failing to provide her a reasonably safe place in which to work, in that the boxes were indiscriminately piled in disorder, without being secured or fastened. This sufficiently requires a finding that the fall of the boxes was due to defendant's negligence with respect to the manner in which they were piled. Cento v. Fruit Growers Assn. (Mo. App.), 7 S.W. (2d) 304; Reed v. Mining Co. (Mo. App.), 287 S.W. 855; Stegman v. Pack. Co. (Mo. App.), 2 S.W. (2d) 172; Dyrez v. Pack. Co. (Mo. App.), 194 S.W. 765; Alvarez v. Truck Co. (Mo. App.), 271 S.W. 533. (4) The judgment of $18,000 for the injuries proven is not excessive. (a) All questions of fact with respect to the extent of the injury must be considered as concluded by the verdict in plaintiff's favor. Manley v. Wells (Mo.), 292 S.W. 67; Reid v. Ins. Co., 58 Mo. 429; Westervelt v. Transit Co., 222 Mo. 334; Deland v. Cameron, 112 Mo. App. 710; Buesching v. Gas Co., 73 Mo. 231; Gannon v. Gas Co., 145 Mo. 502. (b) An appellate court will not interfere with the award of damages unless the amount is so glaringly unauthorized by the evidence as to shock the judicial conscience and compel a conviction that the verdict was the result of prejudice, passion or bias. Manley v. Wells (Mo.), 292 S.W. 67; Grott v. Shoe Co. (Mo.), 2 S.W. (2d) 790; Laughlin v. Ry. Co., 275 Mo. 459; Geotz v. Ambs, 27 Mo. 28. (c) The award is reasonable by comparison with recoveries in similar cases. Brickell v. Fleming (Mo.), 281 S.W. 951; Taylor v. Railroad, 311 Mo. 604; Corby v. Telephone Co., 231 Mo. 447; Stein v. Rainey, 315 Mo. 535.


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