Moellman v. Gieze-Henselmeier Lumber Co.

• Citation: 134 Mo. App. 485,114 S.W. 1023
• Parties: MOELLMAN v. GIEZE-HENSELMEIER LUMBER CO.
• Decision Date: 15 December 1908
• Court: Court of Appeal of Missouri (US)

114 S.W. 1023

134 Mo. App. 485

MOELLMAN v. GIEZE-HENSELMEIER LUMBER CO.

St. Louis Court of Appeals. Missouri.

December 15, 1908.

1. MASTER AND SERVANT (§ 256)—INJURIES TO SERVANT—PLEADING.

A petition in a servant's action for injuries alleging that plaintiff was employed as a laborer, and it was his duty to do whatever was required of him by defendant or his foreman, that plaintiff entered a barn loft and walked across the floor while engaged in defendant's business for the purpose of attending to its business, when he fell through the floor, etc., sufficiently alleged that the injuries occurred in the course of plaintiff's employment.

2. PLEADING (§ 433) — DEFECTS — DEFECTS CURABLE BY VERDICT.

Where an essential fact may be fairly implied from the petition, though not directly alleged, the defect is cured by verdict.

3. EVIDENCE (§ 21)—JUDICIAL NOTICE—USAGE OF BUSINESS.

The Supreme Court cannot take judicial notice of a general custom to leave hay chutes in a barn open, so as to require a servant working in a barn to keep a lookout for such chutes.

4. MASTER AND SERVANT (§ 105)—INJURIES TO SERVANT—PLACE TO WORK—CUSTOM AND USAGE.

As a general rule, a master is only required to conform to the general usage in the same business in furnishing his servants with a place to work.

5. MASTER AND SERVANT (§ 286)—INJURIES TO SERVANT—QUESTION FOR JURY.

In a servant's action for injuries sustained by falling through a hay chute in the master's barn, whether the master was negligent in leaving the chute uncovered and the loft dimly lighted held for the jury.

6. MASTER AND SERVANT (§ 289)—INJURIES TO SERVANT — CONTRIBUTORY NEGLIGENCE— QUESTION FOR JURY.

In a servant's action for injuries sustained by falling through a hay chute in the master's barn while walking across the floor, whether plaintiff was guilty of contributory negligence under the circumstances held for the jury.

7. TRIAL (§ 142)—QUESTION FOR JURY—INFERENCES FROM EVIDENCE.

Where the evidence on contested issues, though uniform and not conflicting, would reasonably justify different inferences, the question is for the jury.

8. MASTER AND SERVANT (§ 293)—INJURY TO SERVANT—INSTRUCTIONS.

Where the petition in a servant's action for injuries alleged that plaintiff was required to go into a barn loft, an instruction requiring a finding that plaintiff entered the loft pursuant to a request from defendant's foreman was not improper as authorizing a recovery on the mere ground that plaintiff was requested to enter the loft.

9. TRIAL (§ 250)—INSTRUCTIONS—DAMAGES— CONFORMITY TO PLEADING AND PROOF.

Instructions on the measure of damages must conform to the pleadings and evidence, and it was error in an injury action to permit a recovery for future medical attention and hospital services where neither was alleged or proved.

10. DAMAGES (§ 159)—LOSS OF EARNINGS— NECESSITY OF PLEADING.

Loss of earnings must be alleged and proved in order to be recovered in a personal injury action.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action by Rudolph Moellman against the Gieze-Henselmeier Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

McKeighan & Watts and Wm. R. Gentry, for appellant. Perry Post Taylor and Emil Mayer, for respondent.

GOODE, J.

Plaintiff fell down a hay chute in the loft of a barn belonging to the defendant company, fracturing his left kneecap —an injury which proved to be serious and permanent. Plaintiff was employed by defendant in its lumber yard for various duties. He swore he was subject to the orders of the officials of the company or its foreman, Kelting, and did nearly all kinds of work. There was a two-story barn on the lumber yard, along which an exterior platform ran on a level with the floor of the second story. One day Kelting was on the platform, endeavoring to thrust a screen door through a door in the side of the barn, which opened into the loft. He experienced difficulty in getting the screen through the opening, and plaintiff, who was watching in the yard nearby, asked if he (plaintiff) should assist. According to plaintiff's testimony, Kelting answered, "Yes," and thereupon plaintiff went through the first story of the barn, climbed a ladder to the second story, and attempted to walk across the floor of the loft to reach the corner where Kelting was at work with the screen door in order to assist him. When plaintiff reached the loft, he found it dimly lighted through a dusty, cobwebby window. He said the light was very poor in the loft, and it was nearly dark there. He was surprised at not seeing the opening where Kelting was at work, a circumstance due to a partition running between plaintiff and said opening, of which he was unaware, never having been in the loft. This partition was on the opposite side of the loft from the ladder aperture where plaintiff had emerged into the room, and served to cut off a gangway a few feet wide between the main body of the room and the outside wall. Bars of light streamed through the boards of the partition, and plaintiff walked across the floor toward this light. In doing so he fell into the chute, which was nearly against the partition wall. He testified he was not thinking of a hole in the floor, but was walking along as a person commonly does, looking down at the floor, and the first thing he knew he found himself at the bottom of the chute in a manger. His kneecap struck against the edge of the manger, and was broken. We have recited the substance of the testimony as plaintiff gave it, though it was contradicted in one respect by Kelting, who testified he answered "No," when plaintiff asked him if he wished assistance. Other testimony was plaintiff said immediately after the accident it was his own fault, and nobody was to blame but himself. The acts of negligence charged in the petition are failing to cause the loft to be lighted or to warn plaintiff of the existence of the hole in the floor, and leaving the hole unguarded. The answer alleges plaintiff went into the loft voluntarily, without an order or request from defendant, or its foreman, and negligently passed across the floor in a careless manner, not looking where he was walking or using care to avoid falling through the hay chute, although he should have known it was in the floor. The jury returned a verdict in plaintiff's favor for $3,000, and, judgment having been entered for that sum, this appeal was prosecuted.

1. It is said the petition fails to state a cause of action because it does not aver plaintiff was executing an order given him by defenda...