Rendlich v. Hammond Packing Co.
| Decision Date | 25 April 1904 |
| Citation | 80 S.W. 683,106 Mo.App. 717 |
| Parties | DAVID RENDLICH, Respondent, v. HAMMOND PACKING COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Henry M. Ramey, Judge.
Reversed remanded.
Johnson Rusk & Stringfellow for defendant.
(1) The demurrer to the evidence should have been given. (2) Instruction number one given for plaintiff is erroneous. In the first place, the court by defendant's instruction number one, directs the jury that they can not find for the plaintiff because of any defect in the rollers or their use but instruction number one for plaintiff directs the jury that if they believe that the hogs were hanging by means of a hook attached to a roller and that said roller ran along a rail to carry said hogs, and that on the date of the accident said "board or device" provided for holding said hogs in proper condition was "loose and out of place" and that plaintiff notified defendant's foreman of the "conditions stated in this instruction," etc., then the verdict should be for plaintiff. This instruction is so ambiguous in its construction that the jury might easily believe that it submitted to them a consideration of the condition of the rollers. 20 Am. and Eng. Ency. Law 128, and cases cited; Halloran v. Union T. & F. Co., 133 Mo. 470; Stalzer v. Packing Co., 84 Mo.App. 570. (3) Plaintiff's instruction number two is erroneous. (4) Instruction number three given for plaintiff is erroneous. Stalzer v. Packing Co., 84 Mo.App. 570; Bailey on M. & S., sec. 3119; 20 Am. and Eng. Ency. Law, 129, and cases cited.
Charles C. Crow for respondent.
(1) Appellant's contention in the first point of its brief is simply absurd in view of the evidence. The jury very properly found the testimony offered by defendant to be false. (2) Respondent's instructions, taken as a whole and read together correctly, declare the law in the case. Instruction No. 1 is qualified by requiring him to have been exercising ordinary care, and even if this were not true appellant's instructions cure any possible technical defect that might exist and further expressly instructs the jury that appellant's and respondent's instructions must be considered and obeyed by the jury as a whole in arriving at a verdict. (3) We ask a careful reading of all the instructions and it will be found that there is no reason for appellant's criticism. Every objection urged by appellant to instructions given on behalf of respondents, are answered, if they require an answer, in its instructions to the jury. State ex rel. v. Hope, 102 Mo. 441; Everett v. Kansas City, 162 Mo. 238; O'Neill v. Blase, 94 Mo.App. 648.
The plaintiff's action is for personal injuries. He prevailed in the trial court.
It appears that plaintiff was in the employ of defendant in its packing house in St. Joseph. That his work was designated as that of a "splitter:" that is, he split recently slaughtered hogs with a cleaver. The hogs were suspended by hooks attached to rollers, the latter running along a rail: that is, they were drawn along the rail by a chain and thus the hog would be taken to the place where plaintiff performed the work of splitting it in halves. There was what is called a "steadying board" the office of which was to hold the hog in position while the splitter clove it in two. The evidence showed that it was necessary to have such device so that the stroke of the cleaver would be true; otherwise, if the hog shifted position the cleaver was apt to glance and injure the person using it.
The rollers were shown to have been in bad condition in more than one respect. Some of them would not revolve, or would not do so freely, and thus as they were pulled by the chain would jerk, or jump, as stated by plaintiff and other witnesses. There was also testimony tending to prove that this steadying board had two loose boards at the back and that it was somewhat worn on the side where first struck by the suspended hogs being pulled along as described.
At the time of the accident plai...
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