Ryan v. Sheffield Car & Equipment Co.

• Decision Date: 27 January 1930
• Docket Number: No. 16762.,16762.
• Court: Missouri Court of Appeals
• Parties: RYAN v. SHEFFIELD CAR & EQUIPMENT CO.

24 S.W.2d 166

RYAN v. SHEFFIELD CAR & EQUIPMENT CO.

No. 16762.

Kansas City Court of Appeals. Missouri.

January 27, 1930.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

"Not to be officially published."

Action by Bettie Ryan against the Sheffield Car & Equipment Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Harris & Koontz, of Kansas City, for appellant.

A. C. Popham, of Kansas City, for respondent.

BLAND, J.

This is an action under the wrongful death statute, plaintiff claiming that her husband was killed by an act of negligence of defendant which took place on the 30th day of August, 1925. Deceased died on the 3rd day of December of that year. There was a verdict and judgment in favor of plaintiff in the sum of $6,000.00 and defendant has appealed.

The facts show that plaintiff and other employees of defendant were engaged in loading scrap iron, consisting of iron rods, from the ground upon a freight car. The iron was moved by a crane. There was a cable attached to an engine running to the upper end of the crane, thence over a pulley and downward so that it could be attached to the material by means of two chains on the end of the cable. Two employees would fasten the chains around a quantity of the rods to be loaded and, after the chain "hookers" moved to a place of safety from being struck by the material upon its being raised, the foreman would give a signal to the operator of the engine to lift the material to the top of the car and deposit the same thereon.

At the time deceased was injured there was present one Owens, the foreman; Steidel, the engineer; Banks, a laborer, who worked with deceased in attaching the chains to the material, and McGowan and Standifer, laborers. Deceased was injured in the following manner:

After he and Banks had attached the chains to the material and before deceased had an opportunity to get out of the way, Owens, the foreman, gave a signal to the engineer to raise the material, which the engineer complied with, and as the crane or boom swung around one of the iron rods in the material being raised struck deceased in the side causing injuries from which he died. With the exception of Standifer, all of defendant's employees who were present testified at the trial, Steidel by deposition. McGowan was the only one who was a witness for the plaintiff and was the only witness who testified that deceased was struck with the iron. Banks and Steidel, witnesses for defendant, testified that deceased, in walking away after affixing the chain to the material, stepped on a small rod and fell over against another rod and struck his side. Owens, who testified for the defendant, stated that he was on the opposite side of the car and did not see what occurred and had nothing to do with it.

One of defendant's theories at the trial was that deceased did not die of any injuries that he may have received at the time in question, but that he died of arteriosclerosis. This was the testimony of the deputy coroner, a physician who made a post mortem examination of deceased.

Defendant insists that the court erred in permitting one Fitzgerald, a nephew of deceased, who testified that he had been in the "embalming and undertaking business for five years and in that connection had made a study of embalming, blood vessels and things of that sort as part of my course," to state that deceased did not die of arteriosclerosis. It is claimed that Fitzgerald was not qualified from a medical standpoint to give such an opinion. Fitzgerald testified that he was present at the time the post mortem was made; that he observed two broken ribs and a blood clot on deceased's brain. He was then asked by plaintiff's counsel whether he saw or observed at the post mortem any evidence of arteriosclerosis or high blood pressure. To this defendant objected on the ground that the witness had not shown himself qualified to answer the question. Thereupon the following occurred:

"The Court: I do not really know whether that is a matter that can be observed. Do you know how to test blood pressure? A. We can tell as to arteriosclerosis when we go to embalm. If we can't get our trocar into the artery or in the tube or in the vein, if it goes in hard, why, we generally think that there is reason to believe there is arteriosclerosis, but if we have no trouble in getting our instruments in the artery, why it is free from it.

"The Court: Tell us what you found in this case. (To which ruling and action of the court, the defendant, by its counsel, at the time duly excepted and still excepts.)

"A. There was no — we had no interference from that part at all. When there is arteriosclerosis there is a hardening of the vessel. I found no evidence of that here."

It will be noted that the witness did not answer the question propounded to him by plaintiff's counsel. There was no objection to the court's first question. When the witness was asked by the court relative to what was found, he merely stated that there was no interference in the matter of inserting the trocar into the artery. This was not an effort to give expert medical testimony. After the witness answered the second question propounded to him by the court he testified that he found no evidence of hardening of the arteries in this case. The record is made up almost entirely of the testimony in a narrative form. Some questions and answers are given verbatim and in making up the abstract this method evidently was followed in those instances for the purpose of making clear the particular point relied upon by defendant. The part of the testimony of the witness, Fitzgerald, appearing after the last answer to the court's question is in narrative form and does not appear to be connected with that answer nor to have been objected to. There was no objection to either of the questions propounded by the court, nor was there any motion to strike out. We find no merit in the contention of the defendant. There was expert medical testimony to the effect that the walls of the blood vessels become hardened in the disease of arteriosclerosis. From this it may be inferred that it would be more difficult to insert an instrument in the blood vessels where the deceased had suffered from that ailment.

It is insisted that the court erred in refusing to give defendant's requested instructions E and F. Defendant's requested instruction E sought to tell the jury that if deceased and Steidel engaged in the same kind of work and neither had any supervision over the other, at the time of the accident, and both were in sight of each other and in a position to see what each was doing, then Steidel and deceased "were fellow servants and that plaintiff cannot recover on this action on account of the negligence, if any, of said Steidel."

Defendant's offered instruction F reads as follows:

"The court instructs the jury that Steidel, the operator of the crane, was a fellow servant of plaintiff's husband, and that plaintiff cannot recover on account of the negligence, if any, of said Steidel."

The court gave defendant's instruction E but amended it by inserting after the words "fellow servant" the words "and that in the absence of any negligence on the part of defendant's foreman, as defined by these instructions, directly contributed to the injury of plaintiff's husband, if any, plaintiff cannot recover in this action on account of the negligence, if any, of said Steidel."

The court also gave defendant's instruction No. F but added to it the word "alone." These amendments were proper. Ward v. Poplar Bluff Ice & Fuel Co. (Mo. App.) 264 S. W. 80.

There is no merit in defendant's contention that the court in these instructions "told the jury that no matter how negligent Steidel, a fellow servant, might have been, and no matter whether or not the negligence of Steidel was the proximate cause of the injury, still, if they found that the foreman was also negligent, then plaintiff could recover." The court's instruction E required the jury to find that the foreman's negligence directly contributed to plaintiff's injuries. If his negligence directly contributed to the injury, then Steidel's negligence was not the sole proximate cause of the injury. If the foreman's negligence contributed to the proximate cause of the injury, then defendant is liable. Ward v. Co., supra.

It is claimed that Owens, the foreman, "was no more of a director of operations than a watchman at a railroad crossing, who directed an on-coming train, was a director and vice-principal of the engineer in charge of the train." Of course, there is no merit in this contention. The evidence shows that Owens was the foreman in charge. The main case relied upon by defendant in this connection, Sams v. R. R. Co., 174 Mo. 53, 64, 73 S. W. 686, 61 L. R. A. 475, is clearly not in point.

It is claimed that defendant's instruction in the nature of a demurrer to the evidence should have been given because there is not sufficient evidence to show that the injuries plaintiff received on August 30th, 1925, resulted in his death on December 3rd.

The evidence shows that deceased received a severe blow to his side, breaking two of his ribs; that he immediately went to see a doctor; that he was unable to work after the accident; that he coughed up blood from the time of his injury until his death; that he gradually declined in health and lost weight (50 pounds) until he died. The evidence further shows that deceased was a strong and healthy man before he received this injury.

In answer to a hypothetical question propounded to the physician who treated deceased (which question covered the circumstances of the injury and deceased's decline in health thereafter) he gave it as his opinion that the blow received by deceased on August 30th resulted in his death.

While defendant had much medical testimony, including the physician who conducted a thorough post mortem examination of deceased, tending...