Rouchene v. Gamble Const. Co., No. 33262.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Hyde
• Citation: 89 S.W.2d 58
• Parties: MICHAEL ROUCHENE v. GAMBLE CONSTRUCTION COMPANY, a Corporation, Appellant.
• Decision Date: 18 December 1935
• Docket Number: No. 33262.

89 S.W.2d 58 MICHAEL ROUCHENE
v.
GAMBLE CONSTRUCTION COMPANY, a Corporation, Appellant. No. 33262. Supreme Court of Missouri. Division One, December 18, 1935.

[89 S.W.2d 59]

Appeal from Circuit Court of City of St. Louis. — Hon. Granville Hogan, Judge.

AFFIRMED.

Wilton D. Chapman for appellant.

(1) Counsel should not be permitted in argument or in opening statement to the jury to make remarks highly prejudicial and outside of the record, and the appellate tribunal has the power to reverse and remand the case when the trial court abuses his discretion in failing to discharge the jury and declare a mistrial after such remarks are made. McGowan v. Wells, 24 S.W. (2d) 633; Evans v. Trenton, 112 Mo. 403, 20 S.W. 614; Ryan v. Sheffield Car & Equipment Co., 24 S.W. (2d) 170; Kirkpatrick v. Wells, 6 S.W. (2d) 591; Jones v Kansas City, 76 S.W. (2d) 340; Nelson v. Heine Boiler Co., 323 Mo. 826, 20 S.W. (2d) 906; Beer v. Martel, 332 Mo. 53, 55 S.W. (2d) 482; Amsinger v. Najim, 70 S.W. (2d) 214; Rytersky v. O'Brine, 70 S.W. (2d) 538; Smith v. Ry. Co., 31 S.W. (2d) 105; Smith v. Western Union Telegraph Co., 55 Mo. App. 626; Hendrick v. Kaufman, 66 S.W. (2d) 985; Harris v. Chouteau Shoe Mfg. Co., 16 S.W. (2d) 633; Jackman v. Ry. Co., 206 S.W. 244; Chawkley v. Railroad Co., 317 Mo. 782, 297 S.W. 20; Barr v. Railroad Co., 138 Mo. App. 471, 120 S.W. 111; Klinginsmith v. Mut. Benefit Health & Accident Assn., 64 S.W. (2d) 705. (2) Plaintiff is not entitled to recover from defendant at common law because his evidence convicts him of contributory negligence barring recovery as a matter of law. (a) It is contributory negligence for an adult in full possession of his faculties and familiar with conditions on account of his occupation and experience for many years not to see and appreciate the danger, if any, connected with a condition with which he is familiar. Cash v. Sonken-Galamba Co., 322 Mo. 349, 17 S.W. (2d) 927; 20 R.C.L., pp. 56, 57, sec. 52; Curtis v. Capitol Stage Lines Co., 27 S.W. (2d) 747; Gray v. Light & Power Co., 282 S.W. 490; Marlowe v. Kilgen, 252 S.W. 424. (b) If what an invitee sees with his own eyes discloses to him all information the proprietor or the person in control has, and the invitee nevertheless encounters the danger, the proprietor or one in control is not liable. Goetz v. Hydraulic Press Brick Co., 320 Mo. 586, 9 S.W. (2d) 606; Vogt v. Wurmb, 300 S.W. 278; Mullen v. Sensenbrenner Mercantile Co., 260 S.W. 982; Main v. Lehman, 294 Mo. 579, 243 S.W. 91; Waldman v. Skrainka Const. Co., 289 Mo. 622, 233 S.W. 242; Carr v. Sheehan, 30 N.Y. Supp. 753. (c) Where one knows of danger and voluntarily exposes himself to it he cannot recover. Devitt v. Railroad Co., 50 Mo. 302; Schraeder v. Railroad Co., 108 Mo. 322; Adolff v. Baking Co., 100 Mo. App. 199; Mark v. Cooperage Co., 204 Mo. 242; Comer v. Taylor, 82 Mo. 341; Stein v. Battenfeld Oil & Grease Co., 327 Mo. 804, 39 S.W. (2d) 345. (d) It is contributory negligence for one who has knowledge or notice of a violation of duty toward him to immediately conduct himself thereafter as though he had no such knowledge or information. He cannot rely on any presumption that the other party will fulfill his duty or obey the law. Huckleberry v. Railroad Co., 324 Mo. 1025, 26 S.W. (2d) 985; Hutchinson v. Ry. Co., 161 Mo. 253, 61 S.W. 852, 84 Am. St. Rep. 710; Van Bach v. Ry. Co., 171 Mo. 338; 1 Sherman & Redfield Negligence (6 Ed.) 279, sec. 92; Clark v. Ry. Co., 127 Mo. 197; Lynch v. St. Ry. Co., 112 Mo. 420; Kilmer v. Connecticut Zinc Corp., 206 Mo. App. 346, 227 S.W. 861. (3) The damages awarded plaintiff are excessive. Mann v. Railroad Co., 72 S.W. (2d) 977; Nelson v. Heine Boiler Co., 20 S.W. (2d) 906; Hughes v. Schmidt, 30 S.W. (2d) 468; Davis v. Stone Co., 49 S.W. (2d) 47; Evens v. Railroad Co., 69 S.W. (2d) 929. (4) The court erred in giving and refusing instructions as hereinafter set forth.

Everett Hullverson for respondent.

(1) When remarks of counsel are prejudicial, error, if any, is cured by court's reprimand, or order to disregard. Whitley v. Stein, 34 S.W. (2d) 1002; Allen v. Autenrieth, 280 S.W. 79; Harrison v. Am. Car & Foundry Co., 280 S.W. 60, 288 S.W. 13, 296 S.W. 214; Wair v. Am. Car & Foundry Co., 300 S.W. 1048; Lang v. Nichols Inv. Co., 59 S.W. (2d) 63; Hankins v. Railroad Co., 31 S.W. (2d) 596; Heseman v. May Dept. Store Co., 39 S.W. (2d) 797; Davis v Querman, 22 S.W. (2d) 58; Walk v. St. Louis Can Co., 28 S.W. (2d) 391; Clark v. Railroad Co., 40 S.W. (2d) 509; Marder, Luse & Co. v. Leary, 26 N.E. 1093. (a) The court in this case made a remittitur, curing the error, if any. (b) The argument with regard to the statement that plaintiff had desired to make this country his adopted country was entirely proper, because it was based on the evidence. Plaintiff testified to the fact that he was in the army; that this was his adopted country, without any objection. Shinholser v. Henry, 106 S.E. 719, 151 Ga. 237; Messersmith v. Supreme Lodge Knights of Pythias, 153 N.W. 989, 31 N.D. 163; Alabama Power Co. v. Bruce, 96 So. 346, 209 Ala. 423; Lindstroth v. Peper, 218 S.W. 431. (c) The statement and argument as a whole were entirely proper. Tuck v. Springfield Traction Co., 124 S.W. 1079; Duerler Mfg. Co. v. Eichhorn, 99 S.W. 716; Texas & N.O. Railroad Co. v. McCoy, 117 S.W. 449. (d) The verdict was for the right party. Brady v. Springfield Traction Co., 124 S.W. 1070; Tuck v. Springfield Traction Co., 124 S.W. 1079; Louden v. Vinton, 66 N.W. 224; Campbell v. Kalamazoo, 45 N.W. 652. (2) Plaintiff was not guilty of contributory negligence as a matter of law; nor was he guilty of negligence of any kind. (a) The matter of contributory negligence of plaintiff was submitted to the jury, not only by defendant, but also by plaintiff. The jury found against defendant on this issue. There was absolutely no evidence that plaintiff was guilty of any negligence, or that he was familiar with the condition there. (b) Or that he was an invitee, or knew, or should have known, the situation which his master was required by law to know and remedy. (c) Or that plaintiff knew of the danger and voluntarily exposed himself to it. (d) Or that he had knowledge of the violation of a duty toward him to immediately conduct himself as if he had no such knowledge. Curtright v. Ruehmann, 164 S.W. 701; Nairn v. Biscuit Co., 96 S.W. 679; Rutledge v. Swinney, 156 S.W. 478; Jacquith v. Fayette R. Plumb, Inc., 254 S.W. 89; Jablonowski v. Modern Cap Mfg. Co., 279 S.W. 89; Kettelhake v. Am. Car & Foundry Co., 153 S.W. 552; Irmer v. St. Louis Brewing Co., 69 Mo. App. 17; Jamison v. Flour City Ornamental Iron Co., 30 S.W. (2d) 984; Tatum v. Crescent Laundry Co., 208 S.W. 139; Mabe v. Gille Mfg. Co., 271 S.W. 1023; Lilley v. Eberhardt, 37 S.W. (2d) 599; Barnard v. Waverly Brick & Coal Co., 176 S.W. 1108; Mueller v. Ralston Purina Co., 254 S.W. 720; Van Bibber v. Swift & Co., 228 S.W. 69. (3) The damages awarded were not excessive, certainly not so after the remittitur. Simmons v. Kansas City Jockey Club, 66 S.W. (2d) 119; Span v. Jackson Walker Coal & Mining Co., 16 S.W. (2d) 190; Emerson v. Mound City, 26 S.W. (2d) 766; Vowels v. Railroad Co., 8 S.W. (2d) 7; Hoffman v. Peerless White Lime Co., 296 S.W. 764; Rose v. Mo. Dist. Telegraph Co., 43 S.W. (2d) 562; Russell v. Railroad Co., 295 S.W. 102; Wack v. Schoenberg, 53 S.W. (2d) 28; Hughes v. Ry. Co., 274 S.W. 703; Gately v. Ry. Co., 56 S.W. (2d) 63; Savage v. Ry. Co., 40 S.W. (2d) 628; Brackett v. James Black Co., 32 S.W. (2d) 288; Whittington v. Westport Hotel Co., 33 S.W. (2d) 963; Messing v. Judge & Dolph, 18 S.W. (2d) 408; Frese v Wells, 40 S.W. (2d) 652; Smith v. Acme Boiler Co., 32 S.W. (2d) 576.

HYDE, C.

This is an action, by an employee of a subcontractor, against a general contractor for the construction of a building, for damages for personal injuries alleged to have been caused by the failure of the general contractor to comply with Section 13275, Revised Statutes 1929. Plaintiff obtained a verdict for $35,000. The trial court ordered a remittitur of $12,500 which was made, and judgment was entered for plaintiff for $22,500. Defendant has appealed from this judgment.

Plaintiff's petition contained several assignments of common-law negligence concerning the safety of his place of work. These, however, were all abandoned and plaintiff submitted his case upon an instruction based solely upon the violation by the general contractor of Section 13275. Defendant contends that the court should have sustained its demurrer to the evidence, saying that plaintiff was guilty of contributory negligence as a matter of law and that Section 13275 is not applicable to the facts of this case. The evidence viewed from the standpoint most favorable to plaintiff's contentions, as we must consider it in ruling this question, tends to show the facts and circumstances hereinafter stated. Defendant was the general contractor with the owner of the St. Louis Mart Building to construct the superstructure for a large eighteen story building and, "under the terms and plans and specifications the general contractor had to provide the barricades and safeguards." Plaintiff was employed, by defendant's cement work subcontractor, as a concrete finisher. His work on this building was to complete a finished surface over rough concrete floors. This was skilled labor for which plaintiff drew $1.62½ per hour and double time for all overtime. It was shown that plaintiff's earnings had averaged $5000 per year, which would make the Workmen's Compensation Act inapplicable to his case. [Sec. 3305, R.S. 1929.]

On the day plaintiff was injured, he worked on the second floor of the building. He started there about eight o'clock in the morning, working "from the east end — about the middle of the building" and worked there until noon. When he went back in the afternoon, his foreman sent him to the north end of the building to help another finisher named...