20 S.W.2d 906
HEINE BOILER COMPANY, Appellant.
Supreme Court of Missouri. Division One.
September 13, 1929.
[20 S.W.2d 907]
Appeal from Circuit Court of City of St. Louis. — Hon. Erwin G. Ossing, Judge.
REVERSED AND REMANDED.
Jones, Hocker, Sullivan & Angerl, Kelley, Starke & Hassett and Nagel & Kirby for appellant.
(1) Instruction 2 is erroneous in that it is broader than the evidence and unsupported thereby. (a) The fact of injury is not proof conclusive of liability. Schmidt v. Light & Power Co. (Mo.), 3 S.W. (2d) 384; Shaller v. Lusk (Mo. App.), 184 S.W. 1179. (b) An inference cannot be based upon an inference. Sexton v. St. Ry. Co., 245 Mo. 254; Yarnell v. Ry. Co., 113 Mo. 580; Trotter v. Ry. Co., 122 Mo. App. 415. (c) An instruction which is broader than the evidence is erroneous. Degonia v. Railroad, 224 Mo. 564; State ex rel. v. Ellison, 270 Mo. 645; Kuhlman v. Water etc. Co., 307 Mo. 607; Allen v. Railroad, 294 S.W. 87. (2) Instruction 2 is further erroneous, in that it conflicts with Instruction 8 by permitting recovery for ordinary dangers of the occupation, which are assumed risks. Hunter v. Candy Co., 307 Mo. 656; Allen v. Railroad Co., 294 S.W. 80; Hoffman v. Lime Co., 295 S.W. 102; Brendel v. Electric L. & P. Co., 252 S.W. 635; West v. Hollady, 196 S.W. 403; Nelson v. Stove Co., 8 S.W. (2d) 918. (3) The court erred in refusing to give instructions on defendant's non-liability if the negligence of a fellow-servant was the sole cause of plaintiff's injury. The offered instructions correctly stated the law, and were properly in the case. Hawk v. Lumber Co., 166 Mo. 128; Sheehan v. Prosser, 55 Mo. 569; Relyea v. Railroad Co., 112 Mo. 86; Van Bibber v. Swift & Co., 286 Mo. 317; Shaw v. Bambrick-Bates Const. Co., 102 Mo. App. 666; Lewis v. Car & Foundry Co., 3 S.W. (2d) 282. (4) The case should not have been allowed to go to the jury and the demurrer to the evidence should have been sustained. (a) None of plaintiff's allegations of negligence are supported by the law and the evidence. No cause of action against defendant was proved. Jones v. Gillioz 9 S.W. (2d) 89; David v. Cider Co., 186 Mo. App. 13; Bowman v. Car & Foundry Co., 226 Mo. 53. (b) If an accident might have occurred from one of two causes, for one of which the master is liable and for the other of which he is not, plaintiff cannot recover without showing that the injury arose from the former cause. Goransson v. Manufacturing Co., 186 Mo. 307; Strother v. Railroad, 188 S.W. 1105; Hamilton v. Railway Co., 300 S.W. 787; Heeter v. Boorum etc. Co., 237 S.W. 902. (c) The statement of a mere conclusion by a witness has no probative value. Hayes v. Barry, 184 Mo. App. 913; Trauer v. Min. Co., 243 Mo. 59; David v. Cider Co., 186 Mo. App. 13. (5) Remarks of counsel for plaintiff in closing argument were improper, and prejudicial, and the court erred in not sustaining defendant's objections thereto, in not reprimanding counsel, and in not discharging the jury. Jackman v. Railway Co., 206 S.W. 244; Pledge v. Griffith, 199 Mo. App. 303; Henry v. Railroad Co., 282 S.W. 423; Chawkley v. Ry. Co., 297 S.W. 20; Stroud v. Lead Co., 272 S.W. 1080. (a) In a closely disputed case, errors are prejudicial. Bowles v. Ry. Co., 271 S.W. 851. (b) Errors are likely to be prejudicial where the verdict is signed by but nine jurors. Warren v. Giudici, 9 S.W. (2d) 541; Torreyson v. Railways Co., 144 Mo. App. 626. (c) The excessiveness of the verdict shows the error was prejudicial. Jackman v. Railway Co., supra. (6) The remark of the court constituted prejudicial error. Stroud v. Doe Run Lead Co., supra; Schmidt v. Railroad Co., 149 Mo. 283; Wair v. Car & Foundry Co., 285 S.W. 155; Jackmann v. Railway Co., 187 S.W. 786; McElwain v. Dunham, 221 S.W. 773; Wilkinson v. Wilkinson, 8 S.W. (2d) 77; Rooker v. Railway Co., 206 Mo. App. 79. (a) Jurors are quick to follow the court's attitude. Kribs v. Light Co., 215 S.W. 762; Dreyfus v. Railroad Co., 124 Mo. App. 585: Hutchinson v. Safety Gate Co., 247 Mo. 71.
E.J. Hullverson, Mark D. Eagleton and Hensley, Allen & Marsalek for respondent.
(1) The case made by plaintiff was clearly one for the jury, and the demurrer to the evidence was properly overruled. (a) The evidence abundantly established negligence on the part of defendant, proximately resulting in plaintiff's injuries, which negligence affected the safety of plaintiff's place of work and constituted a breach of defendant's personal, non-delegable duty to exercise ordinary care to keep plaintiff's working place reasonably safe. Bender v. Kroger Gro. & Baking Co., 310 Mo. 488; Hollweg v. Telephone Co., 195 Mo. 149; Koerner v. Car Co., 209 Mo. 141: State ex rel. Duvall v. Ellison, 283 Mo. 532; Strother v. Mining Co., 261 Mo. 1; Enloe v. Car & Foundry Co., 240 Mo. 443; Schumacher v. Breweries Co., 247 Mo. 141; Dietzmann v. Screw Co., 300 Mo. 196; Johnson v. Brick & Coal Co., 276 Mo. 42; Morin v. Rainey, 207 S.W. 858; Bequette v. Plate Glass Co., 200 Mo. App. 523; Huskey v. Boiler Co., 192 Mo. App. 370. (b) It is not only the duty of the master to exercise ordinary care to furnish the servant a reasonably safe place to work and reasonably safe instrumentalities, and to exercise ordinary care with respect to the means and methods employed and the orders given in performing the work with reference to dangers reasonably to be anticipated, but the law casts upon the master the broad duty to use all reasonable precautions, which ordinary prudence would dictate under the circumstances, to avoid subjecting the servant to risk of injury. Holloweg v. Telephone Co., 195 Mo. 149; Knott v. Boiler & Sheet Iron Works, 299 Mo. 613; Stewart v. Gas Light Co., 241 S.W. 909; Wilborn v. Lead Co., 268 S.W. 655; Henderson v. Stove & Mfg. Co., 197 S.W. 180; Huskey v. Boiler Co., 192 Mo. App. 370. (c) In passing upon the propriety of the action of the trial court in overruling the demurrer to the evidence, this court will accept as true all evidence tending to sustain plaintiff's cause of action, rejecting as untrue all contrary testimony, and will accord plaintiff the benefit of every inference favorable to him which can, with any degree of propriety, be drawn from the entire record. Buesching v. Gas Light Co., 73 Mo. 219: Troll v. Drayage Co., 254 Mo. 332; Anderson v. Davis, 314 Mo. 515. (d) The jury were entitled to believe all of the testimony of any witness or none of it, or accept it in part or reject it in part, as they might find the same to be true or false when considered in relation to the other testimony and the facts and circumstances in the case. Gould v. Railroad, 315 Mo. 713; Anderson v. Davis, 314 Mo. 515; State ex rel. Railroad Co. v. Cox, 293 S.W. 122; Gann v. Railroad Co., 6 S.W. (2d) 44; Zlotnikoff v. Wells, 220 Mo. App. 869. (2) The trial court committed no error in giving plaintiff's Instruction 2. (a) This instruction submits charges of negligence made in the petition and it cannot be doubted that the facts therein hypothesized were abundantly supported by the evidence. It was not necessary to submit every charge of negligence laid in the petition. State ex rel. St. Joseph v. Ellison, 223 S.W. 671; Meeker v. Light & Power Co., 216 S.W. 923; Dobromilsky v. Car & Foundry Co., 293 S.W. 451. (b) The facts hypothesized in this instruction warrant a recovery against defendant as for the negligent breach by defendant of the duty which it owed to plaintiff to exercise ordinary care to keep plaintiff's working place reasonably safe and to take reasonable precautions to avoid subjecting plaintiff to unusual danger not incident to the employment when conducted by defendant with due care. There was consequently no conflict between this instruction and defendant's Instruction 8. Dietzman v. Screw Co., 300 Mo. 210; Johnson v. Brick & Coal Co., 276 Mo. 53. (3) The trial court committed no error in ruling on defendant's objections to alleged improper remarks of plaintiff's counsel in argument — certainly no error affecting the merits of the action or the substantial rights of the appellant. (a) The record of what occurred during argument shows upon its face that the remarks of plaintiff's counsel complained of were invited by prior remarks of defendant's counsel and the attitude of defendant's counsel throughout the trial in insisting upon injecting into the case extraneous matter for the sole purpose of attempting to prejudice the jury against plaintiff; and hence appellant has no ground to complain of the said remarks of plaintiff's counsel. Huhn v. Ruprecht. 2 S.W. (2d) 764. (b) The matter was one resting very largely in the discretion of the trial court, whose rulings will not be disturbed on appeal unless there is a palpable abuse of such discretion, which obviously does not appear in this instance. Huckshold v. Railroad, 90 Mo. 548; Gidionsen v. Railroad Co., 129 Mo. 392; Yost v. Railroad, 245 Mo. 219; Asadorian v. Sayman, 282 S.W. 507; Tucker v. Hagan, 300 S.W. 301; Wojciechowski v. Coryell, 217 S.W. 638; Stephens v. Eldorado Springs, 190 S.W. 1004; Torreyson v. Railways Co., 164 Mo. App. 366. (c) What occurred during the argument by plaintiff's counsel could not have constituted error affecting the merits of the action or the substantial rights of appellants. Beck v. Coal & Hauling Co., 293 S.W. 450; Secs. 1276, 1513, R.S. 1919. (4) In view of the evidence as to the extent and permanency of plaintiff's injuries and his loss, the verdict of $15,000 is obviously not excessive. (a) All questions of fact with respect to the extent of the injuries and loss must be regarded as concluded in plaintiff's favor by the verdict. Manley v. Wells (Mo.), 292 S.W. 67; Westervelt v. Transit Co., 222 Mo. 334; Reid v. Ins. Co., 58 Mo. 429; Buesching v. Gas Light Co., 73 Mo. 231; Gannon v. Gas Light Co., 145 Mo. 502. (b) An appellate court will not interfere with the award of damages unless the amount is so glaringly unauthorized by the evidence as to...