Reynolds v. Al G. Barnes Amusement Company
| Decision Date | 29 June 1927 |
| Citation | 300 S.W. 1062,221 Mo.App. 1169 |
| Parties | JOHN E. REYNOLDS, RESPONDENT, v. AL G. BARNES AMUSEMENT COMPANY, APPELLANT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Nelson E Johnson, Judge.
AFFIRMED.
Judgment affirmed.
W. W Holloway and Atwood, Wickersham, Hill, Levis & Chilcott for respondent.
Frank M. Lowe for appellant.
Trimble, P. J., absent.
This is an action in damages for personal injury alleged to have been received by plaintiff through the negligence of defendant, while plaintiff was engaged as a laborer employed by defendant in connection with others in removing tents and other paraphernalia of defendant's combined circus and animal show, after the performance at Kansas City, Mo., on or about August 20, 1918. This is the second appeal in this case from as many trials in the circuit court. On the former appeal the judgment which was for plaintiff was reversed on account of errors in an instruction and the cause was remanded for a new trial. [See 253 S.W. 140.] The cause again was tried and resulted in a verdict and judgment for plaintiff in the sum of $ 7500, and defendant again appeals.
On the second trial the evidence consisted largely of the testimony produced on the former trial. However, some witnesses were introduced by defendant who had not testified before. We have examined this evidence and find that it does not change the material facts shown in the former trial, which were set out in detail in our former opinion, and which we do not deem necessary to repeat herein. Reference is made therefore to our former opinion for a statement of the facts which is adopted as the statement of facts herein.
The amended petition is in two counts, the second of which was dismissed on trial and we therefore have for consideration the first count only. By permission of the court the first count of the petition was amended by interlineation as follows, "plaintiff alleges his injuries are permanent."
The first count of the petition charges negligence in that defendant caused and permitted a hole to be made in the ground where plaintiff was required to work, by the removal of a tent stake used in connection with one of its tents, and thereby negligently and carelessly created and maintained a dangerous and not reasonably safe condition at said place of work, and failed to cover or fill said hole, and negligently left and maintained the same; that said hole was of sufficient size to, and did, admit the shoe of plaintiff, and cause him to fall and be injured; that defendant negligently and carelessly failed to provide and maintain at said time and place reasonably sufficient light and negligently permitted said premises and said hole to be dark and unlighted.
The answer is first a general denial and, as further answer, contributory negligence and assumption of risk are pleaded. The reply was a general denial. At the close of plaintiff's case and again at the close of all the evidence, defendant asked an instruction in the nature of a demurrer which the court refused. Verdict and judgment were for plaintiff as above indicated.
In support of its appeal defendant urges that the court erred in refusing to sustain its demurrers. While eight charges of error are enumerated in defendant's brief, an examination discloses they are all based upon the proposition that the injury, if any, was due to the act of a fellow servant and therefore that plaintiff may not recover. For the sake of brevity the several assignments may be treated as one.
Plaintiff's position in this respect is that the answer failed to allege the act of a fellow servant as the cause of the injury, that the cause was not tried upon such theory either at the first or second trial, and that defendant therefore is in no position to urge this point for the first time on appeal.
As to the first of these suggestions, to-wit, that the injury, if any, was caused by the negligent act of a fellow servant, it may be said that it is well settled that such defense, to be available, needs not be specially pleaded, but may be presented under general denial. It was so held in Kaminski v. Iron Works, 167 Mo. 462, 67 S.W. 221; Sheehan v. Prosser, 55 Mo.App. 569.
As to the other point, to-wit, that the cause was not tried by defendant on the theory that the injury, if any, was due to the negligent act of a fellow servant, we need only say that an examination of the record discloses a well-defined attempt of defendant directed to this very point. We may not say therefore that the defense did not include this theory. Moreover, under the law as above indicated, defendant was within...
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