Neel v. Ryus

• Decision Date: 07 July 1910
• Citation: 130 S.W. 76,149 Mo. App. 111
• Parties: NEEL v. RYUS et al.
• Court: Missouri Court of Appeals

130 S.W. 76

149 Mo. App. 111

NEEL v. RYUS et al.

Springfield Court of Appeals. Missouri.

July 7, 1910.

1. APPEAL AND ERROR (§ 195)—PRESENTATION OF QUESTIONS BELOW—AMENDMENTS.

Defendant could not on appeal challenge the trial court's action in allowing an amendment to the complaint where he did not take the steps required by the statute to meet the issue presented by the amendment.

2. DAMAGES (§ 159)—PERSONAL INJURIES— LOSS OF TIME—PLEADING.

In a servant's action for injuries, an allegation that plaintiff "was and is by reason of such injuries wholly disabled from working at his trade, and will so continue until such time as it may be necessary for his said injuries to heal," was sufficient to authorize a recovery for loss of time.

3. APPEAL AND ERROR (§ 1170)—HARMLESS ERROR—ADMISSION OF EVIDENCE.

In a servant's action for injuries, where the evidence showed that plaintiff's skull was fractured, and the jury allowed him only $250, the verdict would not be disturbed on appeal though some technical errors may have been committed by the court in the introduction of testimony relating to damages.

4. MASTER AND SERVANT (§ 286)—INJURIES TO SERVANT—SUBMISSION TO JURY.

In a servant's action for injuries through the falling of a wall near which he was working, evidence held sufficient to take plaintiff's case to the jury.

5. MASTER AND SERVANT (§ 296)—INJURIES TO SERVANT—INSTRUCTIONS.

In a servant's action for injuries through the falling of a brick wall near which he was working, an instruction not submitting to the jury whether plaintiff could, by the exercise of ordinary care, have seen or known that the bricklayers were at work, and that the place was unsafe, but submitting that if under any circumstances he could have seen or known such facts, was properly refused as not requiring a finding that plaintiff's carelessness in working under the wall was the cause of the injury.

6. MASTER AND SERVANT (§ 296)—INJURIES TO SERVANT—INSTRUCTIONS.

In a servant's action for injuries through the falling of a brick wall near which he was working, where there was no testimony that plaintiff knew or by the exercise of ordinary care might have known that the wall being constructed was going to fall, and no evidence that such walls when being properly constructed were likely to fall, an instruction not limiting plaintiff's conduct to the exercise of ordinary care, and stating that plaintiff could not recover if he negligently worked under the bricklayers, was properly refused, it appearing that the danger of working under the bricklayers was from falling bricks.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by George Neel against W. H. Ryus and another. Judgment for plaintiff, and defendants appeal. Affirmed.

M. R. Lively, for appellants. Clay & Davis, for respondent.

GRAY, J.

June 6, 1908, this action was instituted in the Jasper county circuit court for damages for personal injuries alleged to have been sustained by the plaintiff while employed by the defendants, in working and performing carpenter work for them on a platform adjoining a building in the city of Joplin, then being constructed by the defendants on contract. The defendants were engaged in erecting a brick building in the city of Joplin, about 125 or 150 feet in length. At the time complained of, the east wall was under construction, and was all finished to within 20 or 30 feet of the north end, and defendants' employés were engaged in finishing the work on the north end of the east wall at the time of the alleged accident. The plaintiff was engaged in laying heavy boards on a platform immediately adjoining the building on the east. This platform was about 10 feet wide, and extended along the full length of the building on the east side, and was but a few feet from the ground. The construction of the platform was also a part of the contract of the defendants for the erection of the building, and plaintiff was engaged as a servant of the defendants working on the platform. While he was at work, a part of the wall then being constructed fell upon him, fractured his skull, and otherwise injured him. The petition alleges that the wall was carelessly and negligently erected and constructed, and was unsafe and dangerous, and that the defendants had knowledge thereof, or could have had knowledge thereof by the exercise of ordinary care and diligence, and that a portion of said wall, by reason of the negligent construction and erection thereof, fell upon the plaintiff and injured him. The answer was a general denial and a plea of contributory negligence. The trial was before a jury, resulting in a verdict in favor of the plaintiff for $250, upon which, in due time, judgment was rendered, and the defendants, after an unsuccessful effort to secure a new trial, have appealed to this court. After the jury had been sworn to try the case, and when plaintiff called his first witness, the defendants objected to the introduction of any testimony, for the reason that the petition did not state facts sufficient to constitute a cause of action. Whereupon the plaintiff asked and was granted permission to amend his petition by interlineation. The action of the court in permitting the amendment is assigned as error. The statute permits amendments, and if the defendant is not ready to meet the issues as made by the amendment, the statute also points out the steps for him to take. Appellants did not take the steps required by the statute, and therefore are precluded from challenging the court's action in permitting the amendment.

The appellants complain that the court committed error in permitting the plaintiff to offer testimony of loss of time, and that the court also erred in permitting the recovery of such damages by instructions given. The petition alleges: "Plaintiff was and is by reason of said injuries wholly...