Ruggeri v. Mitchell Clay Mfg. Co.

• Decision Date: 29 March 1929
• Citation: 15 S.W.2d 775,322 Mo. 737
• Parties: Antonio Ruggeri v. Mitchell Clay Manufacturing Company, Appellant
• Court: Missouri Supreme Court

15 S.W.2d 775

322 Mo. 737

Antonio Ruggeri v. Mitchell Clay Manufacturing Company, Appellant

Supreme Court of Missouri

March 29, 1929

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Affirmed.

Jones Hocker, Sullivan & Angert for appellant.

(1) Instructions 1 and 2 are broader than the evidence in the case, and error was committed in giving and reading said instructions to the jury. Degonia v. Railroad, 224 Mo. 564; State ex rel. Coal Co. v. Ellison, 270 Mo 645; Waddington v. Hulett, 92 Mo. 528; Kuhlman v. Water Co., 307 Mo. 607; Talbert v. Railroad, 314 Mo. 352; Allen v. Railroad, 294 S.W. 87; Kessler v. Power Co., 283 S.W. (Mo. App.) 710; Start v. Newspaper Assn. (Mo. App.), 222 S.W. 870; Black v. Met. St. Ry. Co., 217 Mo. 672; State ex rel. Goessling v. Daues, 284 S.W. 463. (2) The instructions are erroneous in omitting elements necessary to plaintiff's right of recovery and thereby permitting recovery improperly. (a) It is the miner's duty to keep his working place in a safe condition. Livengood v. Lead Co., 179 Mo. 229; Anderson v. Const. Co., 178 S.W. 737; Britt v. Crebo, 199 S.W. 154; Rowden v. Mining Co., 136 Mo.App. 376; Graves v. Smelting Co., 192 S.W. 472; Biondi v. Coal Co., 297 S.W. 171. (b) There is no duty resting upon the master to provide a safe place in which to work, where the place of work changes continually and the danger is temporary. Bradley v. Tea Co., 213 Mo. 320; Zeigenmeyer v. Lime Co., 113 Mo.App. 330; Bloomfield v. Const. Co., 118 Mo.App. 254; Cooney v. Gas Light Co., 186 Mo.App. 156; Huskey v. Boiler Co., 187 Mo.App. 438. (c) The assumption of issuable facts in an instruction constitutes error. Neeley v. Snyder, 193 S.W. 610; Bryan v. Lamp Co., 176 Mo.App. 716. (d) An instruction purporting to cover the whole case and directing a verdict must omit no fact necessary to recovery and must contain all the elements of a party's case; errors and omissions in such instructions cannot be cured by other instructions. Allen v. Ry. Co., 294 S.W. 80; Hendry v. Drug Co., 211 Mo.App. 166; Lauf v. Wiegersen, 295 S.W. 495; Heigold v. United Rys. Co., 308 Mo. 142; State ex rel. Long v. Ellison, 272 Mo. 571; Jaquith v. Plumb, 254 S.W. 89; Mansur-Tebbetts Imp. Co. v. Ritchie, 143 Mo. 587; Stumpf v. United Rys. Co., 227 S.W. 852. (3) The instructions are erroneous in that they constitute a departure from the theory of the petition. (a) An instruction is equally faulty whether it enlarges or restricts the issues. Mansur v. Botts, 80 Mo. 651; State ex rel. St. Joseph v. Ellison, 223 S.W. 673; State ex rel. Ins. Co. v. Allen, 313 Mo. 384; Kidd v. Light Co., 239 S.W. 584; Sinnamon v. Moore, 161 Mo.App. 168. (b) The issues of the pleadings are changed by instructions 1 and 2. Start v. Newspaper Assn., 222 S.W. 870; Wainwright v. Lumber Co., 137 S.W. 53. (4) The verdict is grossly excessive and evidences passion and prejudice on the part of the jury. Domineck v. Coal Co., 164 S.W. 567; Lyons v. Railroad, 253 Mo. 143; Meyers v. Wells, 273 S.W. 110.

Mark D. Eagleton and Hensley, Allen & Marsalek for respondent.

(1) Plaintiff's Instructions 1 and 2 were properly given. The expression "roof of the mine," used therein, was not objectionable. (a) The correctness of an instruction should be judged by its provisions as a whole, and not by taking the instruction apart, and then attacking a single phrase separated from its context. Fearey v. O'Neil, 149 Mo. 467; Alberger v. White, 117 Mo. 347. (b) The evidence shows, without controversy or dispute, that the entire sides and roof of the mine were supported and braced by the cribbing, except the five-foot space where plaintiff was working. The expression "roof of the mine," was used throughout the case in referring to this particular place, which was the only place the roof was exposed. There was not the least suggestion that defendant was guilty of negligence as to any other part of the mine roof. Therefore, the jury could not have been misled into believing that they were authorized, by the use of said expression in these instructions, to find that the entire roof of the mine was unsafe. Martin v. Apparel Co. (Mo.), 249 S.W. 965; Riley v. Independence, 258 Mo. 671; Laycock v. Rys. Co. 290 Mo. 344; Roman v. King (Mo. App.) 268 S.W. 414; Morris v. Ry. Co. (Mo.), 8 S.W.2d 14. (2) These instructions are not premised upon an implied assumption of a duty upon the master, in the first instance, to maintain the miner's working place in a reasonably safe condition, but upon a responsibility assumed by the master as a result of an order and assurance of safety given the miner. Even though, primarily, the duty of maintaining his working place in safe condition rests upon the miner, yet, where the circumstances suggest danger, and the master, by his vice-principal, assures the miner that the place is safe, and orders him to proceed, the master thereby assumes the responsibility which primarily rests upon the miner; and if it appears that the order and assurance of safety were negligently given, under the circumstances, the master is liable for an injury to the servant resulting therefrom. The instructions in question do not assume the existence of a duty on the part of the master, but properly require a finding of the facts from which the duty springs. Keegan v. Kavanaugh, 62 Mo. 230; Sullivan v. Railroad, 107 Mo. 66; Herdler v. Range Co., 136 Mo. 3; Swearingen v. Mining Co., 212 Mo. 524; Fleming v. Mining Co., 194 Mo.App. 212; Smith v. Kansas City, 125 Mo.App. 150; Highfill v. Independence (Mo.), 189 S.W. 801; Fogus v. Railroad, 50 Mo.App. 268; Carter v. Baldwin, 107 Mo.App. 217; Nash v. Lead Co. (Mo. App.), 238 S.W. 584; McCarver v. Lead Co., 216 Mo.App. 370. (3) Neither do these instructions erroneously restrict the issues as made by the pleadings. The petition states that the roof of the mine "at the place where plaintiff was working" was unsafe and dangerous; and that defendant negligently ordered plaintiff to work in the mine "under the conditions aforesaid." Similar expressions used throughout the petition show that it deals only with the place of plaintiff's labor, and not with the entire mine. Continual repetition of the expression, the place where plaintiff was working," was unnecessary, and would have been directly contrary to the governing statute. Sec. 1220, R. S. 1919. The petition should be liberally construed with a view to substantial justice between the parties, especially where no objection was raised by demurrer or motion in the trial court. Sec. 1257, R. S. 1919; Cobb v. Ry. Co., 149 Mo. 135; Quinley v. Traction Co., 180 Mo.App. 287; Johnson v. Ry. Co., 177 Mo.App. 298; Schwanenfeldt v. Ry. Co., 187 Mo.App. 588, (4) The verdict is not excessive. This court has declared in favor of allowing more liberal recoveries of damages in personal injury cases than heretofore. Schroeder v. Wells, 298 S.W. 813; Dees v. Const. Co., 8 S.W.2d 878. An appellate court will not interfere with the award of damages unless the amount is so glaringly unauthorized by the evidence as to shock the judicial conscience and compel a conviction that the verdict was the result of prejudice, passion or bias. Manley v. Wells (Mo.), 292 S.W. 67; Grott v. Shoe Co. (Mo.), 2 S.W.2d 790; Laughlin v. Ry. Co., 275 Mo. 459; Goetz v. Ambs, 27 Mo. 28. The award is reasonable by comparison with recoveries in similar cases. Taylor v. Railroad, 311 Mo. 604; Corby v. Telephone Co., 231 Mo. 417; Stein v. Rainey, 315 Mo. 535; Bond v. Railroad (Mo.), 288 S.W. 777.

OPINION

Ragland, J.

This is a suit by an employee for personal injuries alleged to have been sustained through the negligence of his employer. Plaintiff recovered judgment in the circuit court for $ 15,000; from such judgement defendant prosecutes this appeal. Appellant concedes that the evidence was sufficient to take the case to the jury: it seeks reversal of the judgment on the grounds of error in giving instructions and excessiveness of the verdict. The statements of the facts by the appellant and respondent respectively are in substaintial accord. As that of the respondent is somewhat more concise we adopt it:

"At the time of his injury plaintiff was employed in defendant's clay mine. He was injured by a large rock weighing between two hundred and fifty and three hundred pounds, which fell from the roof of the mine and struck him on the back. Plaintiff had been employed in the mine between three and four mouths. Up until the day of the accident his work was that of a 'loader;' that is, he shoveled the clay into the cars. This clay was shot down from the face of the mine by another employee, called a 'digger.' On the day of the accident, the plaintiff took the place of the regular digger, who was at home sick, and plaintiff's brother, Ambrose Ruggeri, took plaintiff's job as loader or shoveler.

"The drift or entry in which plaintiff was working was seven feet in height and about the same distance in width. The method of bracing or cribbing generally followed in clay mining was employed in the mine in question, to sustain the sides and roof of the drifts or entries. Heavy oak timbers were set in upright position at each side of the drift and another timber laid across the top of the uprights. These timbers were fastened together with spikes. The 'sets,' as three timbers together were called, were placed within a foot or eighteen inches of each other. The timbers were approximately six inches by eight inches in dimension, and therefore a large proportion of the roof and sides of the mine was thus covered up. The cribbing or bracing extended up to the face of the mine, where the work of shooting out the clay was in progress. The evidence shows without dispute that there was available a sufficient supply of these timbers...