Meyer v. Johnson

• Decision Date: 29 July 1930
• Citation: 30 S.W.2d 641,224 Mo.App. 565
• Parties: HARRY MEYER, RESPONDENT, v. WALTER JOHNSON AND C. F. JOHNSON, DOING BUSINESS UNDER THE FIRM NAME OF JOHNSON & SONS, APPELLANTS
• Court: Missouri Court of Appeals

30 S.W.2d 641

224 Mo.App. 565

HARRY MEYER, RESPONDENT, v. WALTER JOHNSON AND C. F. JOHNSON, DOING BUSINESS UNDER THE FIRM NAME OF JOHNSON & SONS, APPELLANTS

Court of Appeals of Missouri, Springfield

July 29, 1930

Appeal from the Texas County Circuit Court.--Hon. W. E. Barton Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

I. W Mayfield & Son and Phil M. Donnelly for appellants.

(1) The plaintiff in this case, if he recovers at all, must be on one or more or all three of the specific acts of negligence assigned in the petition. It is not a case where the doctrine of res ipsa loquitur applies. Where general negligence is pleaded, followed by an enumeration and averment of specific acts, the plaintiff will be confined to the negligence specifically assigned. McManamee v. Ry. Co., 135 Mo 447; Pointer v. Ry. Co., 269 Mo. 114; Kaiser v. Ry. Co., 217 S.W. 534, 535. When specific negligence is charged, such general allegations used in connection with the specific charges do not admit of proof of negligence other than that specifically stated. McManamee v. Ry. Co., supra; Waldhier v. Ry., 71 Mo. 515; Schneider v. Ry., 75 Mo. 295. (2) Plaintiff's hypothetical question asked the doctors was error. There were too many facts assumed to support an intelligent opinion. Besides it was not the proper subject to ask a hypothetical question upon, and usurped the province of the jury. The jury were as capable of judging the cause of his injury as the doctors. The plaintiff cannot prove his case by opinion evidence. Sparks v. Harvey, 214 S.W. 252; Koenig v. Ry. Co., 173 Mo. 720; Roscoe v. Ry., 202 Mo. 594; Feed & Coal Co. v. Ry., 129 Mo.App. 504. (3) Because the evidence fails to show any defective tool or appliance or that it caused plaintiff's injury. The evidence as a whole fails to show that the master could have reasonably anticipated any injury would be the natural and probable result of the operation in which plaintiff was engaged. Jones v. Gillioz, 9 S.W.2d 91; Brightwell v. Lusk, 194 Mo.App. 649 and cases cited therein; Glasscock v. Dry Goods Co., 106 Mo.App. 664; Breen v. Cooperage Co., 50 Mo.App. 202.

L. W. Mayfield and A. W. Curry for respondent.

COX, P. J. Bailey and Smith, JJ., concur.

OPINION

COX, P. J.

Action for personal injury. Plaintiff recovered $ 5000 and defendants appealed.

Defendants were road contractors and were bringing to proper grade a portion of a state highway some distance north of Lebanon, Missouri. Plaintiff was employed by defendants as a common laborer and was injured while engaged with another employee of defendants in making holes through hard-pan into which sticks of dynamite were to be placed and exploded. These holes were made by driving iron bars, called spuds, down through the hard-pan and then pulling them out. Plaintiff charges that while assisting in drawing these bars out after they had been driven into the ground he was hurt.

The petition alleges the employment of plaintiff by defendants and then alleges "That it was plaintiff's duty as such employee of defendants, with the assistance of another employee of defendants, to drive rods of steel into the soil or hard-pan and after doing so to remove said bar of steel so that a hole would thus be made in the earth in which powder might be placed for the purpose of blasting the earth loose so that it might be more readily used . . . . That the usual and ordinary method of pulling a bar of steel from the earth after it had been driven into the ground was to wrap the said bar with a chain and through said chain place a pry or bar to be used as a lever and with which the bar of steel could be safety and readily pulled from the soil without unnecessary strain upon, and without damage to, those who were using and operating the same . . . . " That he was directed by one of the defendants in charge of said construction to pull from the soil and hard-pan a steel bar which had been driven therein to a depth of about five feet. That his foreman with whom he was working was directed by the defendant to use a stenson wrench and to twist and to turn the said bar with the wrench while the plaintiff, at the same time, was directed by the defendant to pull on the said bar with his hands until it would be removed. That plaintiff complained to said defendants of the excessive strain which such an operation would throw upon him and requested that they be permitted to use a chain and lever. That defendant refused that request and required plaintiff to pull the bar without such appliances. That while plaintiff was pulling upon said bar, his helper was twisting and turning said bar with the wrench which placed a great strain on, and twist to, plaintiff's body that caused him to slip and stumble and threw him into such a strain as to cause his abdomen to burst causing what is commonly known as a rupture and wrenched and injured plaintiff's back and spine." He then describes the injuries suffered and then charges as follows: "Plaintiff avers and charges the defendant with the following acts of negligence and carelessness and says that one or more or all of them was the direct and immediate cause of his injuries and damage aforesaid, to-wit:

"(1) That defendants were negligent in not furnishing to the plaintiff a reasonably safe appliance with which to do the work required of him.

"(2) That defendants were negligent in directing plaintiff to perform the work required of him without notifying him of the danger of twisting the bar in question while he was exerting his strength in pulling upon the same.

"(3) That defendants were negligent in directing the bar to be twisted while the plaintiff was pulling thereon."

The evidence for plaintiff, as far as we deem it necessary to quote, was in substance as follows: "Up to the time I was injured, we drove three foot spud bars, drove them down and whipped them out with a fourteen pound hammer; whipped them on each side until they could be lifted out easily. On the 9th of June I was put to spudding in a different way. Walter Johnson, one of the defendants . . . started us on the job . . . . He said 'You get your bars and come over here and I will show you how to do . . . . That is as far down there as you go and he checked the distance five and two-tenths feet. He said here is the depth line and you drive the other bars here and twist them out. He said don't whip them--that bruises up the bar until you cannot get them out at all. You steady the bar and let Caffey twist. We drove the three-foot bar down and twisted it out. Charley Caffey used the wrench. It was two feet long . . . . On top of the bar was a flat place made. Now, he said, Charley, you take the wrench and you twist and he said to me you steady this so as he twists it around you...