Sampson v. St. Louis & S. F. R. Co.

• Decision Date: 08 May 1911
• Citation: 156 Mo. App. 419,138 S.W. 98
• Parties: SAMPSON v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

138 S.W. 98

156 Mo. A. 419

SAMPSON v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

May 8, 1911.

Rehearing Denied June 13, 1911.

1. MASTER AND SERVANT (§ 185) — INJURIES TO SERVANT — FELLOW SERVANTS — WHO ARE FELLOW SERVANTS.

A servant who was the only one allowed to repair machines used by other fellow servants represents the master therein, and is not a fellow servant with those using the machine.

2. MASTER AND SERVANT (§ 278) — INJURIES TO SERVANT — ACTIONS — EVIDENCE.

In an action by a servant against the master for injuries received while operating a defective machine, evidence held sufficient to support a finding that the master was negligent in repairing the machine.

3. MASTER AND SERVANT (§ 277) — RELATION — EVIDENCE — SUFFICIENCY.

In an action by a servant against his master for injuries received while operating a defective machine, evidence held to show that the servant was not a mere volunteer, but operated the machine in the discharge of his duties.

4. MASTER AND SERVANT (§§ 101, 102) — INJURIES TO SERVANT — SAFE PLACE TO WORK.

A master is required to use only ordinary care to furnish his servant a safe place in which to work.

5. APPEAL AND ERROR (§ 231) — PRESENTATION OF GROUNDS OF REVIEW IN COURT BELOW — SPECIFIC OBJECTION.

Where a party failed in the court below to specifically object to certain terms in an instruction, he cannot raise that objection on appeal.

6. TRIAL (§ 210) — INSTRUCTIONS.

The giving or refusing of an instruction that the jury may disregard the entire testimony of witnesses whom they believe to have willfully testified falsely rests largely in the discretion of the trial court, and, where the evidence is sharply conflicting, the giving of such an instruction is not improper.

7. APPEAL AND ERROR (§ 1068) — REVIEW — HARMLESS ERROR.

In a personal injury case, where the instructions failed to limit the amount of recovery to the amount prayed in the petition, the error was harmless, where the award was less than the amount prayed in the petition.

8. MASTER AND SERVANT (§ 205) — INJURIES TO SERVANT — SAFE PLACE TO WORK — RELIANCE UPON MASTER.

A servant is entitled to rely upon the assurance of the master that a machine is safe, where the defects are not obvious.

9. EVIDENCE (§ 192) — INJURIES.

In a personal injury case, where the plaintiff claimed that his injury had caused an abnormal circulation of the blood in his hand, which made it cold all the time, it was not improper for him to have the jury feel his hands.

10. DAMAGES (§ 132) — MEASURE OF DAMAGES — EXCESSIVENESS.

Where a carpenter whose regular wages were $2.25 per day suffered an injury which disabled his left hand, incapacitating him to follow his usual occupation, and he suffered great pain for a long time, an award of $3,500 damages was not excessive.

Appeal from Circuit Court, Court, Christian County; John T. Moore, Judge.

Action by Paul A. Sampson against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas, for appellant. Thomas Moore and Hamlin & Seawell, for respondent.

COX, J.

Action for damages for injury to plaintiff's hand while he was in the employ of defendant with what is called a "jointer." Judgment for plaintiff for $3,500, and defendant has appealed. The errors assigned relate to giving and refusing instructions, and admission of certain testimony.

The petition charges: That plaintiff was in defendant's employ as an engine carpenter and cabinet maker, and was required to use a machine called a "jointer." This "jointer" had in it a cylinder to which were fastened knives. When in use, this cylinder revolved rapidly, and boards were dressed or jointed by being passed over this cylinder while in motion, and thus brought in contact with the knives upon the revolving cylinder. The boxing at the ends of this cylinder, in which it revolved, were held in place by set screws. That these set screws became loose, thus permitting the cylinder to bounce or vibrate, and that this endangered the person using the machine, because of the liability to jar the hand, and cause it to lose its hold upon the board being jointed and fall into the revolving knives. That a servant of defendant, known as the millman, had charge of the repair of the machine, and that plaintiff called his attention to its condition, and that he undertook to repair the machine and render it reasonably safe, but negligently failed to do so, and, after having undertaken the repair of the machine, notified plaintiff that it was safe and directed him to resume work upon it. That he did so, and, while using ordinary care upon his part the set screws came loose, the cylinder bounced or vibrated, causing plaintiff's hold upon the board being jointed to loosen, and his hand to fall into the revolving knives, causing severe injury. The answer was a general denial.

The first contention is that a demurrer to the testimony should have been sustained. Plaintiff's testimony tended to prove every allegation of the petition, and he was corroborated in the main by one other witness. Defendant's testimony was in sharp conflict, but we cannot weigh the testimony, and determine where lies the preponderance. That duty devolves upon the jury alone. This is conceded, but it is contended that it is not shown that the party whom plaintiff says...