Riegel v. Loose-Wiles Biscuit Co.

• Decision Date: 17 February 1913
• Parties: GEORGE RIEGEL, Respondent, v. LOOSE-WILES BISCUIT CO., Appellant
• Court: Kansas Court of Appeals

155 S.W. 59

169 Mo.App. 513

GEORGE RIEGEL, Respondent, v. LOOSE-WILES BISCUIT CO., Appellant

Court of Appeals of Missouri, Kansas City

February 17, 1913

Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Frank Hagerman, Kimbrough Stone and E. E. Ball for appellant.

Charles R. Cooksey and Bird & Pope for respondent.

OPINION

ELLISON, J.

--Plaintiff is a minor, suing by next friend, and at the time of the injuries complained of was not sixteen years old. He applied for employment in defendant's cracker factory representing himself to be seventeen years of age. He was hurt by getting his fingers caught in a part of the machinery of the factory, which he was cleaning as directed by defendant's foreman, and brought this action for damages in which he recovered judgment in the trial court.

The petition was in three counts. But the verdict was rendered on the first and the two others were abandoned. It is alleged in the first count that plaintiff was under sixteen years of age and that defendant knew it or might have known it. It is said by defendant that that count states a case at common law. We, however, regard it as stating a case under section 1723, Revised Statutes 1909, which forbids the employment of persons under sixteen years of age in the cleaning of machinery. The face of that count discloses an evident intention to place the case on that statute, and sufficiently definite terms are used to express such intention. [Lore v. American Mfg. Co., 160 Mo. 608, 621, 61 S.W. 678; Bromberg v. Laundry Co., 134 Iowa 38, 43.]

The count in question charged that plaintiff was required to clean certain conveyor chains (being run by steam) which ran over wheels, by operating a compressed air hose and nozzle. That to do so, he was compelled to stand near the chain in a narrow space which was wet and slick from flour and other material and negligently allowed to remain so; and that defendant negligently failed to provide him with a safe place in which to work. That while so engaged, his foot slipped, caused by defendant's said negligence, whereby he was thrown against the conveyor, his fingers caught and mashed, etc. The answer was a general denial and contributory negligence. There was evidence in plaintiff's behalf tending to support the allegations of the petition; and in defendant's behalf tending to support the plea of contributory negligence.

Notwithstanding the pleadings and the evidence made contributory negligence an issue in the case, the plaintiff asked and was given an instruction submitting the different hypotheses of fact as claimed by him and directing a verdict thereon, wholly omitting the qualification of contributory negligence. This was error. [Gilson v. Jackson Co. Horse Ry. Co., 76 Mo. 282; Hill v. Drug Co., 140 Mo. 433, 440, 41 S.W. 909; Clark v. Hammerle, 27 Mo. 55, 70; Sawyer v. Railroad, 37 Mo. 240, 263; Fitzgerald v. hayward, 50 Mo. 516; Thomas v. Babb, 45 Mo. 384, 386; Goetz v. Railroad, 50 Mo. 472, 474.] In the last of these cases it is said that: "If the plaintiff has shown a state of facts that, of themselves and alone, would authorize a verdict, and other facts were claimed to have been proved by defendant, that would control these facts and require a different one, it would be a misdirection to direct a verdict upon the plaintiff's showing merely." [Abbott v. Mining Co., 112 Mo.App. 550, 557, 87 S.W. 110.] It was error, not merely of nondirection, but of misdirection. [Purcell v. Railway Co., 126 Mo.App. 43; Toncrey v. Railway Co., 129 Mo.App. 596, 600.] It charged that the things submitted were sufficient for plaintiff's recovery and if they were believed to have existed, directed a verdict for him. Now the jury could have believed those things, and yet plaintiff not be entitled to the verdict if they also believed he was guilty of contributory negligence. The principal part of an instruction is addressed to a juror's belief, and it is necessarily improper to direct a verdict on a basis of a part only of what he should believe.

Since this case was submitted our attention has been called by plaintiff's counsel to Meily v. Railroad, 215 Mo. 567, 587, as stating a different rule. The instruction in that case included the hypothesis of plaintiff's contributory negligence, but did omit the matter of assumption of risk. The St. Louis Court of Appeals, in Johnston v. Railroad, 150 Mo.App. 304, 130 S.W. 413, and the Springfield Court of Appeals in Wright v. Mining Co., 163 Mo.App. 536, 147 S.W. 213, cite that case as sustaining, instead of overturning, the rule we have stated. We, however, need not enter into a discussion of the matter, since later cases have restated the old rule as herein announced. [Enloe v. Car & Foundry Co., 240 Mo. 443, 144 S.W. 852; State v. Helton, 234 Mo. 559, 564, 137 S.W. 987; State v. Stubblefield, 239 Mo. 526, 144 S.W. 404.]

There is a class of cases in which it is held that if an instruction for plaintiff, which ignores contributory negligence, is followed by one for defendant setting up his nonliability if the plaintiff was guilty of contributory negligence, it would cure the otherwise fatal defect. [Owens v. Railway Co., 95 Mo. 169; Hughes v. Railway Co., 127 Mo. 447.] Here, however, the defendant did not ask such an instruction and the issue of contributory negligence was therefore entirely cut out of the case by plaintiff's instruction.

But plaintiff insists that it was defendant's duty to have asked such instruction, and having failed to do so, cannot now complain. It is never the duty of one party to correct the voluntary error of his opponent. Plaintiff's idea doubtless comes from the rule that where one party submits a general instruction, good as it stands, it will suffice though it might properly contain more of detail which would in effect perhaps limit its application;...