Michely v. Mississippi Valley Structural Steel Company

• Decision Date: 06 December 1927
• Citation: 299 S.W. 830,221 Mo.App. 205
• Parties: LOUISE MICHELY, ADMINISTRATRIX OF THE ESTATE OF NICHOLAS MICHELY, DECEASED, RESPONDENT, v. MISSISSIPPI VALLEY STRUCTURAL STEEL COMPANY, A CORPORATION, APPELLANT. [*]
• Court: Missouri Court of Appeals

299 S.W. 830

221 Mo.App. 205

LOUISE MICHELY, ADMINISTRATRIX OF THE ESTATE OF NICHOLAS MICHELY, DECEASED, RESPONDENT, v. MISSISSIPPI VALLEY STRUCTURAL STEEL COMPANY, A CORPORATION, APPELLANT. ^[*]

Court of Appeals of Missouri

December 6, 1927

Appeal from the Circuit Court of the City of St. Louis.--Hon. Robert W. Hall, Judge.

REVERSED.

Judgment reversed.

Jones Hocker, Sullivan & Angert for appellant.

(1) The demurrer of the defendant Mississippi Valley Structural Steel Company should have been sustained, because: (a) The order by Doerner, if given, to move the column to the west was not a negligent order. The defendant Mississippi Valley Structural Steel Company was not negligent. (b) The court declared as a matter of law at the close of the plaintiff's case, that defendant Doerner was not negligent, and at the close of all the evidence directed a verdict in favor of Doerner, and the verdict of the jury was in his favor. The case was tried on the theory that Doerner was the foreman and the plaintiff was injured through a negligent order of his. Mississippi Valley Structural Steel Company could only be liable through Doerner's negligence. There was no case against the employer to be submitted to the jury. (c) Plaintiff was guilty of contributory negligence as a matter of law in placing his foot on the tie directly under a column that weighed five tons, at which time the column was only seven inches above the tie and they were in the act of lowering the column onto the ties. (2) The negligence alleged against both Doerner and the corporate defendant, on which the case was submitted to the jury, was misfeasance on the part of Doerner, if established, for which he would be liable. State ex rel. Hancock v. Falkenhainer et al., Circuit Judges, 291 S.W. 466; McCanver v. Lead Co. & Foster, 216 Mo.App. 370; Steinhauser v. Spraul, 114 Mo. 551; Jewel v. Bolt & Nut Co., 231 Mo. 206. (3) The court having directed a verdict in favor of Doerner should also have directed a verdict in favor of the corporate defendant. Doerner was acquitted of negligence and that act automatically acquitted the corporate defendant. McGinnis v. C. R. I. & P. Ry. Co., 200 Mo. 347; Lindman v Kansas City, 308 Mo. 161; No. 9 L.R.A. (N. S.), page 880--Note; L.R.A. 1917E, page 1029. (4) Plaintiff's instruction No. 2 given by the court undertook to define preponderance of the evidence and concluded by directing a verdict for plaintiff if the jury found that the evidence preponderated in plaintiff's favor. This instruction was erroneous and misleading. (5) Plaintiff's instruction No. 4 given by the court directed a verdict in plaintiff's favor if the jury found that Doerner gave plaintiff a negligent order to move the column to the west. The instruction is broader than the pleading and did not require the jury to find that Doerner knew, or by the exercise of ordinary care could have known that plaintiff's foot was in danger of being caught. This instruction was clearly erroneous. (6) On plaintiff's evidence the court should have given the corporate defendant's instruction E on contributory negligence. Either party is entitled to the benefit of evidence introduced by the other as fully as though introduced by that party. Hedges v. Metropolitan Street Ry. Co., 125 Mo.App. 583; Beane v. City of St. Joe & Investment Co., 211 Mo.App. 200; MacGuire v. St. Louis Transit Co., 103 Mo.App. 459. (7) The court erred in refusing to give defendant's instruction F, which required the jury to find by a preponderance of the evidence that Arthur Doerner directed the plaintiff to move the column, and that Arthur Doerner knew, or by the exercise of ordinary care, could have known, that plaintiff was in danger of being caught, and that Arthur Doerner in so doing was negligent. (8) The court erred in refusing to give defendant's instruction G, which required the jury to find that Arthur Doerner failed to exercise that degree of care and caution that an ordinarily careful and prudent person would have exercised under the same or similar circumstances before they could find a verdict against defendant Mississippi Valley Structural Steel Company. (9) The court erred in refusing to give defendant's instruction H. (10) The court erred in refusing to give defendant's instruction I. (11) Plaintiff lost three toes of the left foot. He incurred no medical expense and lost five months in wages. The result obtained was good and plaintiff's evidence showed that he had a good serviceable foot. The verdict of five thousand dollars ($ 5000) is excessive. (12) When plaintiff submitted his case to the jury by instruction on assignment of negligence No. 1, he thereby abandoned assignments of negligence Nos. 2 and 3. Schroeder v. Wells, 276 S.W. 60; Dietzman v. Screw Company, 300 Mo. 196; Evans v. Southern Wheel Co., 273 S.W. 749; Snyder v. Western Union Tel. Co., 277 S.W. 362; Gehbauer v. J. Hahn Bakery Co., 285 S.W. 170.

Douglass & Inman for respondent.

(1) The court did not err in overruling the demurrer of defendant for, under the law and the evidence in this case, plaintiff made a case for the jury on the issue as to whether it was negligence on the part of the defendant's foreman in directing or ordering plaintiff to move the large iron column off the timber instead of moving the column with the crane. Porter v. Mo. P. R. Co., 267 S.W. 964; McCauley v. Brewing Co., 254 S.W. 868; Swick v. Bridge & Iron Co., 232 S.W. 241; Henson v. Stove Co., 190 Mo.App. 474; Wilson v. Johnson & Son, 242 S.W. 150. (2) Plaintiff was not guilty of contributory negligence in obeying the order of his foreman while working under the immediate eye of the foreman in carrying out the order. 18 R C. L. 701, sec. 185; Doody v. Woolen Mills, 274 S.W. 692; McCarver v. St. Joseph Lead Co., 268 S.W. 687; Kame v. Railroad, 254 Mo. 175, 197 (3). (3) The action of the trial court in sustaining the demurrer of defendant Doerner at the close of plaintiff's case did not thereby discharge this defendant, but if it had then this defendant waived the discharge because: (a) It failed to stand on its demurrer or to ask for a verdict "non obstante veredicto," and went ahead and put in its evidence on the merits of the case, and thereby contested plaintiff's right to recover on the merits; it then sought a discharge on the merits and not on a question of law, and this court will hear the case only on the theory on which it was tried below, that is, whether this defendant was guilty of negligence that proximately caused the injury to plaintiff. Geninazza v. Storage Co., 252 S.W. 417; Polski v. City of St. Louis, 264 Mo. 458; Whitfield v. Union Elec. Co., 271 S.W. 52. (b) The defendant in its motion for a new trial failed to call to the trial court's attention the law which it now claims discharged it when the court sustained the demurrer of the defendant Doerner, therefore, this error, if error, cannot be reviewed by this court. Polski v. City, 264 Mo. 458; Whitfield v. Union Elec. Co., 271 S.W. 52; Daggett v. American Car & Foundry Co., 285 S.W. 855. (c) The action of the trial court in sustaining the demurrer of Doerner at the close of plaintiff's case did not discharge this defendant, for there is nothing in the record to show on what ground or theory the court sustained the demurrer. Polski v. City, 264 Mo. 458. (4) Instruction No. 2 given at the request of the plaintiff properly declares the law on the question of burden of proof and preponderance of the evidence, and it has been approved in many cases, one at least by this court--Thurman v. Wells, 251 S.W. 75. Plaintiff's instruction No. 4 properly declares the law and First. It was not necessary that the instruction require "the jury to find from the evidence that Doerner knew, or by the exercise of ordinary care could have known that plaintiff's foot was in a position of danger" because. (a) It was not necessary that Doerner should anticipate that this precise injury should happen; all that was necessary is that he should anticipate some injury might happen. McElroy v. Steel Erection Co., 269 S.W. 934; Kidd v. Railroad, 274 S.W. 1079. (b) Doerner was a vice-principal and was present directing the work when he gave the order, and it was his duty to know that some injury might happen to plaintiff if plaintiff attempted to move the column instead of moving it with the crane. Kame v. Railroad, 254 S.W. 175; Quinlan v. American Car & Fdry. Co., 225 S.W. 440; Stuva v. American Car & Fdry. Co., 270 S.W. 145. Second. Instruction No. 4 is criticized because it directs a verdict if the negligent order "directly contributed to cause plaintiff's injuries, " but this is not error. Evans v. Klusmeyer, 301 Mo. 362; Riska v. Railroad, 180 Mo. 195. Third. Instruction No. 4, which tells the jury to find for plaintiff if the negligence "directly contributed to cause plaintiff to be injured," is criticized because defendant says there is no other act of negligence pleaded which it is claimed contributed with the negligent order. This is not necessary under the law. Peppers v. Railroad, 295 S.W. 707; Harrison v. Electric Light Co., 195 Mo. 606; Guthrie v. Railroad, 279 S.W. 210. (5) Defendant's instruction E was properly refused by the court for--(a) If it be conceded it was technically correct as abstract law, yet it was so worded as to be confusing and misleading, instead of aiding the jury, and it is not error to refuse such an instruction. Bolin v. Frisco, 282 S.W. 141; Peppers v. Frisco, 295 S.W. 759; Fisher v. Pullman Co., 212 Mo.App. 280. (b) This instruction is erroneous because it deals in generalities, assumes as facts what are not facts, is ambiguous and misleading, and instead of clarifying the issues confuses them, and should not have been given. See authorities under (a) above; Head v. Lumber Co., 281 S.W. 441...