Mues v. Century Electric Co.
| Citation | 280 S.W. 412 |
| Decision Date | 04 February 1926 |
| Docket Number | 24639 |
| Parties | MUES v. CENTURY ELECTRIC CO |
| Court | United States State Supreme Court of Missouri |
Albert E. Hausman, of St. Louis, for appellant.
S. P McChesney and Eilers & Schaumberg, all of St. Louis, for respondent.
Plaintiff asked for $ 25,000 as his damages for personal injuries alleged to have been sustained by him while he was employed by defendant in its plant in the city of St. Louis. The verdict was in favor of defendant. The defendant provided lockers in the basement of the building wherein its employees might place their clothes. On the occasion in question, the plaintiff had been to his lunch at the noon hour, and was on his way to the locker where he kept his clothes. In walking along the passageway toward the locker, he struck his left shin against the side of a truck which stood in the passageway, and fell or stumbled. The injuries claimed were an injury to the left shin, and an injury to the left hip the latter, plaintiff alleged, resulting in a tubercular condition of the hip joint. It was alleged that the injury occurred on June 22, 1920.
The petition did not charge negligence on the part of defendant because of the presence of the truck in the passageway. The sole charge of negligence was failure of defendant to light the passageway sufficiently. He charged:
'That, while he was attempting to walk through said passageway, he stumbled and fell over a truck which was in said passageway, and in so stumbling and falling over said truck he was injured in the respects hereinafter set out; that he was caused to stumble and fall over said truck by reason of the negligence of the defendant in this, to wit, that it failed to exercise ordinary care to make and render said passageway reasonably light for the purpose of permitting plaintiff to walk through the same in safety, and the said passageway was, by the negligence of the defendant, so insufficiently lighted and dark as to cause plaintiff to stumble and fall over said truck and suffer the injuries hereinafter set out.'
As to his injuries, plaintiff alleged:
'That, by reason of so stumbling and falling over said truck, he was caused to suffer a blow and shock to his said left shin and leg, and an abrasion of the said left shin and leg, and a blow and shock to his said left hip and the bones, ligaments, and muscles and nerves thereof, and a bruise to his said left hip and thigh and the bones, muscles, ligaments, and nerves thereof; that he was caused to suffer traumatic arthritis of said left hip and bones thereof, and because of said blow, shock, and bruise of said left hip and the bones, nerves, ligaments, and muscles thereof, and because of said traumatic arthritis, tuberculosis of said left hip developed, and the bones of said left hip have become diseased with tuberculosis, and the motion of said left hip and use thereof to plaintiff have been seriously and permanently diminished and lessened. * * *'
None of the witnesses testified as to the existence of traumatic arthritis; but both plaintiff's and defendant's medical witnesses testified that there was a tubercular condition of the joint of plaintiff's left hip. The existence of a tubercular condition in December, 1920, was shown.
The answer was a general denial, followed by an averment that, whatever injuries plaintiff sustained were caused by his own negligence in walking into the side of the truck, although there was sufficient light in the passage, and sufficient space for plaintiff to see and to walk, had he looked where he was going; and there was also the plea of assumption of the risk by the plaintiff.
The issues of fact made prominent by the testimony were: (1) The extent to which the passageway was lighted; (2) the question whether plaintiff fell or merely stumbled; (3) and the question whether the tubercular condition of his left hip, shown at the trial, was the result of the injury for which he sued, or was the result or persistence of a condition existing at and before the time of the alleged injury. The nurse and the physician at defendant's plant testified that, on the day of plaintiff's alleged injury, plaintiff came for treatment, that there was an abrasion of the skin, which was treated, but that plaintiff made no complaint of an injury to his hip, and they knew nothing of an injury to his hip. Plaintiff testified that he complained at that time of his hip. In December following, and also in January, 1921, X-ray pictures of plaintiff's hip were taken, and testimony was given by physicians who had examined the pictures, and also examined plaintiff. The testimony for the defendant tended to show that the tubercular condition was of long standing, and not the result of striking the truck. Defendant also introduced testimony to show that plaintiff was lame before he entered defendant's employment; that he walked with a cane, and 'favored his left leg in walking.' Plaintiff had been in defendant's employment only a few days at the time in question. He said he had been through the passageway once before. There was sharp conflict between plaintiff and defendant's witnesses upon the extent to which the passageway was lighted. Plaintiff testified that there was no light in the passageway, 'with the exception of a small red light, which did not throw any light.' Defendant's evidence from a number of witnesses was that at the time there were two lights of 50-watt candle power in the passageway, and three lights in the room adjoining the locker room, known as the annealing room, and that there was no difficulty in seeing all objects in and about the passageway Defendant also introduced testimony to the effect that plaintiff did not fall, and that he 'hit no part of his body other than his shin'; that he did not fall down, but 'bumped his shin, and put his hands down and caught himself.'
The plaintiff remained at the plant during the afternoon of the day of his injury, but did not work that afternoon.
On his cross-examination, he testified that he had worked nearly every day after he had the accident until his discharge from defendant's employment in the October following; that afterward he was unable to work on account of the condition of his hip. He testified that prior to the time of his employment by defendant he had worked for the Curtis Manufacturing Company, and, while working there, had caught his pants leg in a saw tooth, and had been thrown to the floor upon his left knee; that he was laid up for some time with this knee, but had been treated until about April, 1920, and at that time his hip was in good condition.
Dr. Vossberg, who examined plaintiff at defendant's instance in January, 1921, and took X-ray pictures, testified that the X-ray pictures showed an old tubercular process, and, in his opinion, the condition had been coming on for several years, and was not, in his opinion, due to traumatism.
The foregoing sufficiently outlines the pleadings and the evidence, except such further reference thereto as may be necessary in considering the instructions. The only errors assigned are directed against instructions given for defendant.
II. The defendant's instructions, of which plaintiff complains, fall into two groups. Instructions 5, 6, and 7 are related and deal with the question whether plaintiff sustained an injury to his hip on the occasion mentioned, and with defendant's nonliability for the tubercular condition and resultant disability shown, if that condition and disability were not caused by plaintiff's striking against the truck.
Instruction 5 is as follows:
'The court instructs the jury that, although you may find and believe from the evidence that the plaintiff is suffering from tuberculosis of the hip joint, yet, if you further find and believe from the evidence that said tuberculosis of the hip joint was not caused by reason of the accident in question, then plaintiff cannot recover therefor.'
Plaintiff's contention is that, by the phrase, 'then plaintiff cannot recover therefor,' the jury were, in effect, told that the verdict must be for defendant, unless the tubercular condition resulted from the accident; but, taking the instruction as a whole, it is not so to be understood, since the word 'therefor' refers to the words 'tuberculosis of the hip joint.' The instruction is not a model, but we think it cannot fairly be otherwise understood than as telling the jury that plaintiff could not recover for the tuberculosis of the hip joint if that was not caused by reason of the accident in question.
The plaintiff, for a like reason, also complains of instruction 6, which is as follows:
'The court instructs the jury that even though you believe and find from the evidence that plaintiff is now suffering from some disability or disabilities, and that his working power is impaired, yet, if you further believe and find from the evidence that such disability or disabilities were not caused by reason of his bumping into the truck mentioned...
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