Sinberg v. The Fack Company
| Decision Date | 02 March 1903 |
| Citation | 72 S.W. 947,98 Mo.App. 546 |
| Parties | CLEM SINBERG, Respondent, v. THE FALK COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. J. C. V. Karnes, Special Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Harkless O'Grady & Crysler for appellant.
(1) The theory in this case, upon which it was tried, that it was the duty of the defendant to furnish a reasonably safe place for the servant to work, was wholly beside the case under the evidence here. The place in which he was working and the dangers, if any, were because of the changed conditions from time to time which the plaintiff and his fellow-servants were themselves producing. And the rule of furnishing a safe place must be necessarily modified if the place becomes dangerous in the proper progress of the work. Hurst v Railroad, 163 Mo. 309, 318; Bradley v Railroad, 138 Mo. 293; Finalyson v. Utica, 67 F. 510; Armour v. Hahn, 111 U.S. 313; Railroad v. Jackson, 65 F. 48; McCann v. Kennedy (167 Mass. 23), 44 N.E. 1055; Clark v. Liston, 44 Ill.App. 578. (2) Any instruction which concludes with a peremptory direction to the jury to return a verdict for the plaintiff founded upon the facts detailed in the instruction and which wholly ignores and eliminates the defense in the case, is erroneous and constitutes cause for reversal. Carter v. Primm, 60 Mo.App. 423; Linn v. Massilon, 78 Mo.App. 111; Orscheln v. Scott, 79 Mo.App. 534; Desnoyer v. Lison, 85 Mo.App. 340. (3) Instructions that assume the existence of disputed facts are erroneous. Linn v. Massilon, 78 Mo.App. 111; Carter v. Primm, 60 Mo.App. 423.
Ward & Hadley and Kimbrell & Kimbrell for respondent.
(1) Where a series of instructions taken together contain a complete exposition of the law and cover every phase of the case, the verdicts obtained thereon will be sustained, even though the instructions when taken separately may be incomplete and open to objection and criticism. If taken together the full law of the case can be ascertained, they are complete and there is no necessity for "qualifying each instruction by an express reference to the others." Hughes v. Railroad, 127 Mo. 452; Owen v. Railroad, 95 Mo. 169; Nickel v. Paper Co. (not yet reported). (2) The doctrine of the duty of the master to furnish the servant a reasonably safe pathway or place to work, clearly applies in this case. Doyle v. Trust Co., 140 Mo. 1; Herdler v. Stove Co., 136 Mo. 3; Huth v. Doyle, 76 Mo.App. 671; Bullmaster v. St. Joseph, 70 Mo.App. 60; Hyeel v. Swift & Co., 78 Mo.App. 39; Sullivan v. Railroad, 107 Mo. 78. (3) The instructions correctly declared the law and it was plainly stated in number 4 that plaintiff assumed the ordinary risks incident to the work he was called upon to perform, a true copy of number 6 in case of Doyle v. Trust Co., 140 Mo. 1. (4) It was for defendant to ask fuller instructions if those given did not put their theory of the case fully before the jury. Brown v. Railway, 13 Mo.App. 463; Boetger v. Iron Co., 124 Mo. 105; Tethrow v. Railroad, 98 Mo. 86; Hughes v. Railroad, 127 Mo. 453; State v. West, 157 Mo. 309. (5) The fact that the instructions were not phrased with entire accuracy will not furnish ground for reversal, if a jury of ordinary intelligence could not have been misled thereby. Meyer v. Tann, 11 Mo.App. 599.
--The plaintiff seeks to recover damages for personal injuries alleged to have been received in consequence of defendant's negligence while in its employ. The answer was a general denial and that plaintiff's injuries were caused by his own negligence, and that he assumed the risk.
The evidence in the case discloses the following state of facts: The Falk Company, a corporation of Milwaukee, Wisconsin, the appellant herein, was on the 9th day of May, 1900, and prior thereto, engaged in the reconstruction of the double tracks of the Metropolitan Street Railway Company at the intersection of Eighth street and Grand avenue, Kansas City, Missouri, Eighth street extending east and west and Grand avenue north and south. Said street railway was operated by means of an underground cable, and at the points where said tracks turn, "or curve," around from Eighth street into Grand avenue, the cable is held in place by pulleys of iron placed underneath the street surface of the tracks between the rails. This series of iron pulleys extends around the curves of each track for a distance of about forty feet and revolve very rapidly when the cable is in motion. In the center of the tracks is an iron slotrail through which the grip from the car extends down to the underground cable. The pulleys are covered by a series of metal plates about sixteen inches wide, twenty inches long and one inch thick, placed side by side, and extending from the outside rail to the center or slot-rails of the tracks. The streets were paved with asphalt at this point, except over the pulleys at the curve, where the metal plates were so placed as to constitute a part of the street pavement, and persons would walk over them in passing along the streets. Appellant's work of reconstruction, in so far as these curves were concerned, consisted of shortening them by forcing them over to the southeast, near to the sidewalk at the southeast corner of Eighth street and Grand avenue. Plaintiff Clem Sinberg was employed by defendant as a common laborer, and on the afternoon of May 8, 1900, he and other laborers were finishing up the work at the south curve under the immediate supervision and direction of appellant's foreman. They had moved the track over to the southeast and it was nearly if not quite secured in place. The cable was running, the pulleys revolving, and the cars were passing over said track during the process of reconstruction as aforesaid. While they were finishing up the curve, plaintiff was ordered by the Falk Company's foreman to return at midnight to work on the night shift. When he returned at midnight he was directed by said foreman to saw an iron track rail of the north track on Eighth street at a point about fifty feet east of the east line of Grand avenue. He had almost severed said rail when said foreman commanded him to "hurry up" and "get a brace" to put under the nearly severed rail, so that an approaching car might safely pass over the track. The braces were on or near a pile of dirt south of the south curve, which plaintiff was engaged in finishing up the previous day. In order to reach said braces, by the most direct and convenient route, in order to obey the order of appellant's vice-principal aforesaid, it was reasonably proper for plaintiff to pass along and over the metal plates covering the pulleys of the south curve. The metal plates had all been replaced, except one, and defendant's foreman and workmen and the street railway's inspector had been walking along and over said curve and using the same for a regular pathway for at least two hours before plaintiff returned to his work. They were so using it at the time of plaintiff's injury. An electric light was northeast of said curve, and one of defendant's foremen, Mr. Krebbs, was passing along between it and the south curve in such a position that his shadow fell across said south curve, at the point where the single metal plate was out of place, and as plaintiff walked along said south curve, looking for the brace, he stepped into the hole made by the missing plate and was injured. About fifty men were working around under said light, and their shadows frequently fell across said south curve.
It is not denied, in fact all the evidence goes to...
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