Phelps v. Conqueror Zinc & Lead Co.

• Decision Date: 25 February 1909
• Court: Missouri Supreme Court
• Parties: PHELPS v. CONQUEROR ZINC & LEAD CO.

117 S.W. 705

218 Mo. 572

PHELPS v. CONQUEROR ZINC & LEAD CO.

Supreme Court of Missouri, Division No. 1.

February 25, 1909.

Rehearing Denied March 31, 1909.

1. TRIAL (§ 192)—INSTRUCTIONS—ASSUMPTION OF FACTS.

It is not error for an instruction to assume existence of a fact which all the evidence in the case shows did exist.

2. APPEAL AND ERROR (§ 928)—RECORD— EVIDENCE.

One asserting error in an instruction, in that there was no evidence on which to base it, must bring up by the record all the evidence introduced, the presumption being in favor of the correctness of the acts of the trial court, one of general jurisdiction.

3. APPEAL AND ERROR (§ 1002)—REVIEW— FINDINGS OF FACTS.

The finding of the jury on conflicting evidence as to the facts bearing on the question of negligence is binding on appeal.

4. MASTER AND SERVANT (§ 270)—INJURIES TO SERVANT—EVIDENCE.

As tending to show that a defect in a shaft was a flaw therein, and not a key seat cut for the purpose of keying the shaft to the hub, plaintiff could introduce evidence that the wheels on shafts of the size of the one in question were not secured by that means, but were invariably fastened by means of set screws.

5. APPEAL AND ERROR (§ 1050)—HARMLESS ERROR.

Where the petition for injury from the breaking of a shaft alleged that the defect causing the break was a flaw or a hole cut therein for keying the wheel to it, and that it so weakened the shaft as to render it unsafe for persons employed to work under it, so that the important question was whether the defect, which all the evidence showed did exist, rendered

it unsafe and dangerous, any error in admitting evidence to show that it was a flaw, rather than a cut, was harmless.

6. DAMAGES (§ 216)—INSTRUCTIONS—ELEMENTS TO BE CONSIDERED.

An instruction which, after calling attention to the various elements to be considered in fixing the damages for a personal injury, concludes, "together with all the facts and circumstances in the case, and assess the damages at such sum as from the evidence you may deem proper, "while technically open to the criticism of giving the jury, by the concluding clause, a roving commission to allow damages for other elements, must have been considered to refer to like elements, and so could not have been prejudicial.

7. DAMAGES (§ 132)—PERSONAL INJURIES.

A verdict of $7,500 was not excessive where plaintiff's skull was badly fractured, several pieces of it and a portion of the brain had to be removed, the head was disfigured, and his injuries were permanent.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by Mack S. Phelps against the Conqueror Zinc & Lead Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff instituted this suit in the circuit court of Jasper county to recover the sum of $20,000 damages for personal injuries sustained by him through the alleged negligence of defendant in furnishing him with defective and dangerous pieces with which to work. A trial was had before the court and a jury, which resulted in a verdict and judgment for plaintiff for the sum of $7,500. From that judgment the defendant duly appealed to this court.

The material portions of the petition are as follows: "That the rock and earth from said mine was raised in tubs and lowered back into the mine, through said shaft, by means of a cable drawn over an iron pulley by a hoisting apparatus which was propelled by steam power applied and controlled by levers and brakes, manipulated by hand. That it was the duty of the plaintiff, as hoisterman, to manipulate said levers and brakes, thus hoisting and lowering said tubs. That the iron pulley, before mentioned, was fixed in a derrick directly over the center of said shaft, and overhead the plaintiff when at his post as hoisterman, and revolved with an iron or steel axle or shaft to which it was fastened. But plaintiff states that the defendant negligently furnished him with an unsafe appliance with which to do hoisting, in this: that the iron or steel axle or shaft to which said pulley was fastened, and with which it revolved overhead the plaintiff, was dangerous and unsafe for said work, in this: that said axle or shaft was weak and defective, and, among other defects, contained a hole or flaw which rendered it liable to break and fall from its place, thus endangering the life of the plaintiff. And said hole, if it was a hole and not a flaw, was so cut and placed in shaft or axle as to render said axle or shaft, on account of its small size compared with the size of said hole, weak and defective, and not reasonably safe for the purpose for which it was used. That defendant, its agents and officers, knew of said hole or flaw in said axle or shaft, and of its weak and defective condition on account thereof, or by the exercise of reasonable care might have known the same, in time to have same replaced before the happening of the accident hereinafter mentioned. That on the 24th day of September, 1904, the plaintiff, while in the performance of his duty as hoisterman for defendant, and while in the exercise of ordinary care, was lowering a tub by means of the hoisting apparatus aforesaid, when the said iron or steel axle or shaft, by reason of its defective condition and of the hole or flaw in the same, broke and fell with the pulley, striking the plaintiff on the head, breaking and crushing his skull so that much brain matter escaped from plaintiff's head, by reason of which the plaintiff has suffered much bodily pain and mental anguish, and has been confined for seven weeks to his room, and has since said injury been unable to perform any labor; and that his head, by reason of said injury, has been permanently injured, so that he suffers pain in his head, and his eyesight is impaired, and his head scarred and disfigured, by reason of which he has been damaged in the sum of $19,500, and that on account of said injuries the plaintiff has been compelled to become liable to pay, and has paid, to physicians and surgeons for professional attention to him, and for nursing and drugs and medicines, the sum of $500."

The answer is a general denial and a plea of contributory negligence. The reply denies the charge of contributory negligence.

The evidence in this case is voluminous, covering 150 printed pages, and no useful purpose would be served by attempting to set out even the substance of it; but when necessary for a proper understanding of the legal propositions presented, we will state so much thereof as bears upon those questions.

The plaintiff introduced testimony tending to prove all of the allegations of the petition, while that of defendant tended to show that the shaft or axle complained of was reasonably safe for the purposes for which it was being used; that the defect therein complained of was latent and unknown to it; and that plaintiff was guilty of contributory negligence.

The court gave instructions for each party, submitting their respective theories of the case to the jury.

The defendant objected and saved its exceptions to the action of the court in giving for plaintiff instructions numbered 2 and 4, which read as follows:

"(2) Even though the jury may believe from the evidence that the hole in question in the shaft of the sheave wheel was made or cut for a key seat, yet if the jury further believe that said hole was cut too large and too deep compared with the size of said shaft, and that said shaft or axle was thereby rendered weak and defective and insufficient, and not reasonably safe for the purpose for which it was used; and if the jury further believe that defendant, its agents and servants, knew, or by the exercise of reasonable care might have known, of said hole in said axle or shaft, and of the weak and defective condition...