Pendegrass v. St. Louis & San Francisco Railroad Company

• Decision Date: 31 December 1913
• Parties: WILLIAM H. PENDEGRASS, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

162 S.W. 712

179 Mo.App. 517

WILLIAM H. PENDEGRASS, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 31, 1913

Appeal from Cape Girardeau Circuit Court.--Hon. C. B. Faris, Judge.

AFFIRMED.

Judgment affirmed.

W. F Evans, Moses Whybark and A. P. Stewart for appellant.

(1) The demurrer to the evidence should have been sustained, because (a) Plaintiff had full charge of the pump house and all appliances, including the ladder, and it was his duty to see that it was kept in a reasonably safe condition. He was a vice principal. Forbes v. Dunnavant, 198 Mo. 208; Knorpp v. Wagner, 195 Mo. 662; Herbert v. Ferry Co., 107 Mo.App. 297; steffenson v. The Roehr Co., 136 Mo.App. 228; Bowen v. Railroad, 95 Mo. 277; Miller v. Railroad, 109 Mo. 356; Tel. Co. v Jeffries, 154 S.W. 1114; Williams v. Ransom, 234 Mo. 71; Henson v. Stave Co., 151 Mo.App. 243; Modlagl v. Foundry Co., 248 Mo. 587, 154 S.W. 752. (b) Plaintiff had used the ladder thirty or thirty-five times without accident. It was a simple appliance; he knew its condition, better even than his master, and he must be held to have assumed the risk. Steinhauser v. Spraul, 127 Mo. 541; Blundell v. Mfg. Co., 189 Mo. 560; Marsh v. Chickering, 101 N.Y. 396; Cahill v. Hilton, 106 N.Y. 518; Sheridan v. Gorham Mfg. Co., 13 L. R. A. (N. S.) 687. (c) Even if there was a defect in the ladder, such defect was a latent one, which could not have been discovered by the exercise of ordinary care on the part of the master, and there can be no recovery. Lee v. Railroad, 112 Mo.App. 396. But the ladder was a "common tool," to which the rule of ordinary care on the part of the master does not apply. Vanderpool v. Partridge, 13 L. R. A. (N. S.) 668; Dickenson v. Jenkins, 144 Mo.App. 136. The duty of inspection by the master of appliances used by servants does not extend to small and common tools in every day use. Wachsmuth v. Electric Co., 118 Mich. 275. (d) The ladder was peculiarly within the knowledge of plaintiff, and exclusively under his control. He therefore cannot be aided by the rule of res ipsa loquitur. Klebe v. Distilling Co., 207 Mo. 486; Railway v. Andrews, 96 S.W. 183. (2) The first instruction given for plaintiff is erroneous, since it placed upon defendant the absolute duty to furnish plaintiff a reasonably safe appliance; whereas the law only requires that the defendant use ordinary care to furnish a reasonably safe appliance. The master is not an insurer of the absolute safety of either the servant or the appliance. Henson v. Stave Co., 151 Mo.App. 244; Bowen v. Railroad, 95 Mo. 268; Blanton v. Dold, 109 Mo. 64; Glover v. Bolt & Nut Co., 153 Mo. 327; Minnier v. Railroad, 167 Mo. 99; Chrismer v. Tel. Co., 194 Mo. 189; Beebe v. Transit Co., 206 Mo. 419; Brown v. Land & Lbr. Co., 65 Mo.App. 162; Marshall v. Hay Press Co., 69 Mo.App. 256; Stalzer v. Packing Co., 84 Mo.App. 570; Bennett v. Lbr. Co., 116 Mo.App. 699; Chenoweth v. Sutherland, 129 Mo.App. 438. (3) The second instruction given for plaintiff is erroneous for two reasons: (a) It permitted the jury to take into consideration "any bodily pain and anguish that plaintiff will likely suffer in the future, if any;" without limiting it to such as would be the direct result of the injuries sustained. (b) It permitted the jury to take into consideration "the reasonable value of the time lost, if any, since the injury and on account thereof; the extent, if any, to which plaintiff will be prevented and disabled by reason of said injury from earning money in the future." The petition does not allege loss of time or earnings. Loss of earnings must be specially pleaded. Ingles v. Railroad, 145 Mo.App. 247; Edwards v. Railroad, 79 Mo.App. 259; Slaughter v. Railroad, 116 Mo. 269; Scholl v. Grayson, 147 Mo.App. 664; Coontz v. Railroad, 115 Mo. 674; Scholl v. Grayson, 147 Mo.App. 664. Instructions must not be broader than the pleadings. Fulkerson v. Thornton, 68 Mo. 468; Melvin v. Railroad, 89 Mo. 106; Whitlock v. Appleby, 49 Mo.App. 297; Black v. Railroad, 217 Mo. 685; Kellogg v. Kirksville, 132 Mo.App. 519; State ex rel. v. Land & Lbr. Co., 161 Mo. 673. (4) The fifth instruction given on behalf of plaintiff is erroneous. Authorities cited under point I. (5) The verdict of the jury is excessive.

Lane & Alexander for respondent.

(1) The demurrer to the evidence offered by plaintiff was properly overruled; there is ample evidence in the record to justify the submission of this case to the jury. 4 Thompson on Negligence, sec. 3960; Thomas on Negligence, Rules, Decisions and Opinions, pp. 790, 792, 793; Thompson on Negligence, White Supplement, secs. 3949, 3950, 3952; Bailey on Personal Injuries (2 Ed.), p. 2160; 1 Bailey on Personal Injuries, p. 356; White on Personal Injuries on Railroads, sec. 152; Twombly v. Consolidated Electric Light Co., 64 L. R. A. 51; Porter v. Railroad, 60 Mo. 160; Porter v. Railroad, 71 Mo. 66; Railroad v. Harris, 107 S.W. 108; Czernicke v. Ehrlich, 212 Mo. 395; Phippin v. Railroad, 196 Mo. 339; Bible v. Railroad, 154 S.W. 883; East Tennessee Co. v. Jeffries, 154 S.W. 1112; Steinhauser v. Spraul, 114 Mo. 551; Hanlan v. Railroad, 104 Mo. 381; Murray v. Railroad, 101 Mo. 236; Railroad v. Cox, 55 S.W. 354; Bowen v. Railroad, 95 Mo. 278; Miller v. Railroad, 109 Mo. 356, 357; Adams v. Railroad, 102 S.W. 906, 907; Green v. Banta, 48 N.Y., Super. Ct. R. 156; Green v. Banta, 97 N.Y. 627; Solarz v. Railroad, 29 N.Y.S. 1123. (2) According to undisputed evidence, respondent was directed to go to Crystal City to take charge of the pump at that place, and his duty was to run the pump and pump water, as shown by all the evidence. The ladder was an appliance furnished by the master, and under the law it was the master's duty to furnish reasonably safe appliances, which were fit for the purpose for which they were intended to be used. Respondent did not select the ladder or choose the material of which it was constructed. Therefore, none of the decisions cited under point I in appellant's brief are applicable to this case. It was the duty of appellant by inspection, to keep his appliances and machinery reasonably safe, and in that regard to exercise reasonable care commensurate with the nature of the business, to protect its servants from the hazards incident to it. This duty the law imposes on the master and will not allow him to cast it off. It is contrary to public policy to allow the master to relieve himself by contract from liability from his own negligence. The servant never assumes the risk of the master's negligence. Phippin v. Railroad, 196 Mo. 347; Bible v. Railroad, 154 S.W. 883; Lee v. Railroad, 112 Mo.App. 391; Porter v. Railroad, 71 Mo. 77; Czernicke v. Ehrlich, 212 Mo. 395; Railroad v. Beasley, 155 S.W. 187. (3) Appellant specially complains of plaintiff's instructions Nos. 1, 2 and 5. There were five instructions given for the plaintiff, and eleven instructions for the defendant. We submit that, as a whole, the instructions fairly cover the law and the evidence, and that there are no vital defects in the plaintiff's instructions; on the other hand, appellant's instructions cover every phase of the case and every defense urged by it. Porter v. Railroad, 71 Mo. 66; Porter v. Railroad, 60 Mo. 160; Bible v. Railroad, 154 S.W. 883; Lee v. Railroad, 112 Mo.App. 391; Czernicke v. Ehrlich, 212 Mo. 394; Phippin v. Railroad, 196 Mo. 347; Texas Co. v. Strange, 132 S.W. 372. (4) (a) Plaintiff's instruction No. 2 is on the question of the measure of damages, and which we think, under all the decisions in this State, is well enough. We content ourselves with citing a few cases which we think are directly on the point and that discuss this precise question. Bible v. Railroad, 169 Mo.App. 519, 154 S.W. 883; Reynolds v. Transit Co., 189 Mo. 419, par. 4, and cases cited; Scholl v. Grayson, 147 Mo.App. 664, 665; Smith v. Railroad, 155 S.W. 56; Beasley v. Railroad, 155 S.W. 187; Dean v. Railroad, 199 Mo. 393; Devoy v. Transit Co., 192 Mo. 206; Haywood v. Kiehn, 151 S.W. 207. (b) The instruction is criticised because it is alleged that it permitted the jury to take into consideration the reasonable value of the time lost, if any, since the injury, and on account thereof; the extent, if any, to which plaintiff would be prevented and disabled by reason of said injury from earning money in the future. This precise point is thoroughly discussed and is ruled against the contention of the appellant in the case of Scholl v. Grayson, 147 Mo.App. 664. (c) Appellant is estopped now from complaining about the measure of damages submitted, for the reason that the evidence shows a permanent disability, and for the further and more potent reason that the court is not required in civil cases to instruct on every and all questions whether suggested or not; and for the further reason that there is nothing in the amount of the verdict to indicate that the jury were actuated by any improper motive in their assessment of damages. If the instructions on the measure of damages was broader than was warranted in the opinion of appellant, it was its duty to offer a correct instruction on that point and thereby call the court's attention to the question. Geismann v. Electric Co., 173 Mo. 679, and cases cited; Hughs on Instructions, sec. 57; Railroad v. Worthy, 27 S.W. 426.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.--

This is an action by a servant against the master for personal injuries alleged to have been sustained while in the latter's employ. There was a verdict and judgment for plaintiff below, and the case is here upon defendant's appeal.

At the time that plaintiff received his injuries he was working for the defendant railroad company, as a "pumper," at the latter's...