Sims v. Hydraulic Press Brick Co.

• Decision Date: 30 July 1929
• Docket Number: No. 27644.,27644.
• Parties: RICHARD SIMS, Appellant, v. HYDRAULIC PRESS BRICK COMPANY.
• Court: Missouri Supreme Court

19 S.W.2d 294

RICHARD SIMS, Appellant, v. HYDRAULIC PRESS BRICK COMPANY.

No. 27644.

Supreme Court of Missouri, Division One.

July 30, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. Franklin Miller, Judge.

DISMISSED.

Fred Berthold for appellant.

Elliot, Blayney & Bedal for respondent.

ATWOOD, P.J.

This is an action for $20,000 damages on account of personal injuries sustained by appellant on June 22, 1924, while in the employ of respondent as a fireman at a brick kiln. The jury returned a verdict for defendant and from the judgment entered thereon plaintiff appealed.

The case was tried on plaintiff's amended petition, which alleged that while plaintiff was breaking coal with a coal hammer, in the course of his aforesaid employment, the hammer struck the coal a glancing blow, causing a piece of coal to strike plaintiff in the left eye, destroying the sight thereof and resulting in injury to and permanent impairment of the sight of plaintiff's right eye. The grounds of negligence alleged were: Head of hammer loose because no wedge between head and handle; face of hammer rounded; place where plaintiff worked unsafe because gloomy and dark; and failure of defendant to supply plaintiff with goggles. Defendant's answer admitted the employment; denied the other allegations of the petition; alleged that the risk of flying pieces of coal was assumed by plaintiff; pleaded a release executed by plaintiff; and pleaded contributory negligence of plaintiff in failing to wear goggles supplied him by defendant and which he had been instructed to use. In his reply plaintiff denied generally the allegations of defendant's answer, and in avoidance of the release set up the ignorance of plaintiff that he was signing a release and the belief that he was signing a receipt for wages.

On the threshold of our consideration of this case we are confronted with an insufficient abstract of the record. Numerous exhibits were introduced in evidence, a study of at least some of which would be necessary in a determination of the Defective issues here presented, but they are not shown in the Abstract. abstract of the record filed by appellant, nor does the index "specifically identify" these exhibits as required by our rule number 13. While respondent has filed an additional abstract supplying this information without asking that the appeal be dismissed because of these defects, it must not be understood that appellant is thereby relieved from the consequences, under Rule 16, of his own delinquency. Nor is this all. We find that appellant's brief violates our rule number 15 in that it does not contain "a fair and concise statement of the facts of the case without reiteration, statements of law, or argument." As said in Crockett v. Kansas City Rys. Defective Co., 243 S.W. (Mo. Sup.) 902, 905: "We conceive that Brief: the rule requires a statement of the ultimate facts Statement. which the testimony tends to prove and not a statement of the testimony which tends to establish such facts." At any rate, the statement should fairly and concisely present all the facts admitted in evidence on behalf of both plaintiff and defendant, except when plaintiff is cast on demurrer to the evidence, that are necessary to an understanding and determination of the errors assigned on appeal. In this case appellant not only quotes at length from the testimony instead of stating the ultimate...