Reed v. V. E. Koch

• Decision Date: 02 March 1926
• Citation: 282 S.W. 515,220 Mo.App. 175
• Parties: INES REED, RESPONDENT,
• Court: Missouri Court of Appeals

282 S.W. 515

220 Mo.App. 175

INES REED, RESPONDENT, v. V. E. KOCH, APPELLANT.

Court of Appeals of Missouri, Springfield

March 2, 1926

Appeal from the Circuit Court of Greene County.--Hon. Warren L White, Judge.

AFFIRMED.

Judgment affirmed.

R. A Pearson, of Joplin, and W. R. Self, of Springfield, for appellant.

(1) Where the situation caused by the master's negligence and the danger thereof are as well known to the servant as the master, and according to the nature and character of it, the hazard is obvious and imminent, the servant cannot recover for resulting injuries. Myers v. Glass Co., 129 Mo.App. 556; Smith v. Railway, 151 Mo. 409; Thomas v. Cement Co., 245 S.W. 575, 211 Mo.App. 141; Maxwell v. Railway, 85 Mo. 95; White v Lewiston, 87 N.Y.S. 90; Flynn v. Railway, 78 Mo. 203; Rube v. Mining Co., 209 S.W. 616; Van Bibber v. Swift, 228 S.W. 77; Hall v. Coal Co., 249 S.W. 444. (2) The drinking of intoxicating liquor by the servant is not negligence in itself; it must be shown to be excessive or such as to render him incompetent before the master is chargeable with notice. 26 Cyc. 1301; Norfolk v. Railway, 47 Am. St. Rep. 392; Zumwalt v. Ry. Co., 35 Mo.App. 661; Allen v. Lumber Co., 171 Mo.App. 501; Wallin v. Ry. Co., 138 N.W. 270. (3) Where an instruction purporting to cover the entire case assumes a fact, alleged in the petition, necessary to be proved and to be found by the jury, it is reversible error, nor is it cured because such finding is required in other instructions. Kibler v. Ragland, 263 S.W. 511, (5), (6); Rutledge v. Swinney, 170 Mo.App. 265; Connell v. Co., 257 S.W. 772 (17); Wease Tool Co., 187 Mo.App. 716; Humphreys v. Railway, 178 S.W. 254; Walker v. White, 178 S.W. 233; Stumpf v. Railway, 227 S.W. 852; Jackson v. Black, 264 S.W. 443 (4, 5). (4) Other and disconnected acts of negligence are not competent to prove the negligence charged. 22 C. J. 744, sec. 835; Friedman v. Railway, 238 S.W. 1076 (8); Haycraft v. Grigsby, 88 Mo.App. 358; Land Co. v. Tie Co., 79 Mo App. 547; Coale v. Railway, 60 Mo. 227; Shoemaker v. Coal Co., 255 S.W. 352 (5); Schierbaum v. Schemme, 157 Mo. 22. (5) The court's discretion is limited to a prudent and legal exercise in accordance with the principles, analogies and spirit of the law; and plaintiff at the close of all the evidence may not be permitted to amend his petition to conform to the proofs, (a) where the amendment changes the claims and enhances the damages, (b) when the proofs are offered out of order as rebuttal, (c) where the testimony has been admitted over defendant's objection, (d) where plaintiff knew the facts for months before hand and had all that time in which to amend, (e) when he was fully advised for such time that defendant questioned the competency of the evidence under the original petition and knowingly chose to go to trial thereon, (f) and no excuse whatever is tendered for asking such amendment at such time. Christabel v. Craig, 80 Mo. 375; Feary v. Railway, 162 Mo. 94; Flowers v. Smith, 214 Mo. 138; Laclede Land Co. v. Goodno, 181 S.W. 413 (5); Bank v. Brinkerhoff, 110 Mo.App. 437; 31 Cyc. 402, 373 and 452; Weed Sewing Machine Co. v. Philbrick, 70 Mo. 648; Little River Drainage v. Railroad, 236 Mo. 113; Carter v. Dilley, 167 Mo. 571; Laughlin v. Leigh, 226 Mo. 339; Delaney v. Delaney, 245 S.W. 1075; State v. Reynolds, 208 S.W. 620 (4); Joyce v. Growney, 154 Mo. 263; Arkla Lumber Co. v. Mfg. Co., 252 S.W. 967 (6, 7); Boyer v. Ry. Co., 199 P. 283; W. U. Co. v. Graham, 244 S.W. 585. (7); Johnson v. Sunshine Ice Co., 243 N.W. 455; N. W. Thresher Co. v. McNich, 140 P. 1171 (2); Policastro v. Sprague, 161 N.Y.S. 912.

H. T. Lincoln, and C. H. Skinker, Jr., of Springfield, for respondent.

(1) Plaintiff was not guilty of contributory negligence as a matter of law. Williams v. Mo. Pac. Ry. Co., 109 Mo. 475, 18 S.W. 1098; Smith v. Little Pittsburg Coal Co., 75 Mo.App. 177; Brown v. Lumber Co., 202 Mo.App. 573, 209 S.W. 310; Hutchinson v. Richmond Safety Gate Co., 247 Mo. 71, 113, 152 S.W. 52; Bleisner v. Distilling Co., 174 Mo.App. 139, 157 S.W. 980; Dakan v. Mercantile Co., 197 Mo. 267; Sustar v. Bambrick Bro. Const. Co., 179 Mo.App. 495, 162 S.W. 730. (2) Plaintiff's instruction No. 1 did not assume that Wilkerson was addicted to the use of intoxicating liquor to such an extent as to render him incompetent. The charge that if defendant knew Wilkerson was addicted to drinking, etc., is not an assumption that Wilkerson was so addicted and especially is this true where, as here, the jury had already been told in the preceding part of the instruction that they must find that Wilkerson was addicted to drinking, etc., before they could find for plaintiff. Ogan v. Mo. Pac. Ry., 126 S.W. 191, 193; Ludwig v. Cooperage Co., 156 Mo.App. 117, 129, 136 S.W. 749; Kaiser v. United Rys. Co., 155 Mo.App. 428, 438; McMillan v. Bausch, 234 S.W. 835; Beck v. Galloway-Pease Lumber Co., 239 S.W. 166; Liljegren v. Ry. Co., 227 S.W. 925; Leine v. Contracting Co., 134 Mo.App. 557, 564, 114 S.W. 1147. (3) Appellant cannot complain that evidence was admitted of excessive drinking on the job by employees other than Wilkerson where appellant is responsible for such testimony getting into the record. Nitchman v. United Rys. 203 S.W. 491; Ry. Co. v. Plate, 92 Mo. 614, 634; Schaffer v. Mo. Pac. Ry. Co., 98 Mo.App. 445, 72 S.W. 154; Buffum v. Woolworth Co., 273 S.W. 180; Huston v. Mo. Pac. Ry. Co., 50 Mo.App. 300, 304; Birmingham Drainage Dist. v. Railway, 266 Mo. 60, 71, 178 S.W. 893. (4) The court did not err in permitting plaintiff to amend the damage clause of his petition by interlineation nor in overruling defendant's objections to evidence showing blood poisoning resulting from plaintiff's injury. The statutes are liberal in this respect and if defendant felt that the original allegations of the petition were not broad enough to support this testimony or that there was a variance between the petition and the proof he should have filed the statutory affidavit of surprise showing in what respect he was prejudiced or misled. R. S. 1919, Secs. 1272, 1273 and 1274; Turnbow v. Kansas City Rys. Co., 211 S.W. 41, 45; Bryant v. Kansas City Rys. Co., 217 S.W. 632, 634; Landers v. Railway Company, 114 Mo.App. 655, 90 S.W. 117.

BAILEY, J. Cox, P. J., and Bradley, J. concur.

OPINION

BAILEY, J.--

Plaintiff brought suit seeking damages for personal injuries received about October 25, 1923, while in the employ of defendant in constructing a state highway west of Springfield, Missouri. The petition alleges that defendant had employed one Arch Wilkerson as a teamster and that plaintiff was likewise a teamster, both engaged in the work of constructing the road under the direction of defendant's foremen; that plaintiff was required to drive a lead team of three horses and thereby aid in pulling and loading a wheel scraper to which was attached the team of horses which Wilkerson was required to drive; that plaintiff's team was attached to the scraper by means of a hook put through the end of the tongue on the scraper; that when the scraper was filled it was the duty of Wilkerson to stop his team and give plaintiff an opportunity to detach the front team from the scraper by removing the chain and to move himself and team to a place of safety; that on or about October 25, 1923, while engaged in said work plaintiff was injured by reason of Wilkerson, who was at the time intoxicated, driving his team upon plaintiff while he was engaged in unfastening the chain of the lead team from the tongue of the scraper; that the facts which constitute negligence are as follows: "That after defendant had employed the said Arch Wilkerson, and for a long time prior to plaintiff's said injuries, the defendant knew, or by the exercise of ordinary care and caution should have known, that the said Arch Wilkerson was addicted to the use of intoxicating liquor to such an extent as to make him careless, reckless, incompetent and unsafe to work along with his other employees, including this plaintiff, and that notwithstanding this knowledge, the defendant carelessly and negligently retained the said Arch Wilkerson in his employment and negligently and carelessly permitted the said Arch Wilkerson to work along with his other employees, including this plaintiff."

The answer was a general denial and a plea of contributory negligence. No facts were pleaded.

This cause was twice tried in circuit court before a jury, finally resulting in a verdict and judgment for plaintiff in the sum of $ 2500, from which judgment, defendant has appealed.

Defendant first assigns as error the refusal of the trial court to sustain his instruction in the nature of a demurrer to the evidence, offered at the close of all the evidence. The evidence most favorable to plaintiff, which for the purpose of this demurrer must be taken as true, developed a state of facts substantially as follows: Plaintiff was a man about 38 years of age and a widower with two children. In the fall of 1923, he was working for defendant as a teamster in building a part of state highway No. 14, West of Springfield, which defendant had under contract. At the time of the accident plaintiff was engaged in "hooking wheelers" in the manner described in his petition heretofore noted. The wheel scraper was constructed with a lever to raise and lower the pan. In loading the pan it was lowered and when full it was raised in order to carry off the load without scraping the ground. The loading was accomplished by the use of five horses, two of which were attached directly to the scraper, one on each side of the tongue, while the other three, being the lead team, were only used with the scraper while it was in the process of being loaded. Two men worked on the scraper, one...