Smith v. Greer

• Decision Date: 07 January 1924
• Docket Number: No. 3433.,3433.
• Citation: 257 S.W. 829,216 Mo. App. 155
• Parties: SMITH v. GREER
• Court: Missouri Court of Appeals

257 S.W. 829

216 Mo. App. 155

SMITH v. GREER

No. 3433.

Springfield Court of Appeals. Missouri.

January 7, 1924.

Rehearing Denied January 23, 1924.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by Fred Smith against A. W. Greer. Judgment for plaintiff, and defendant appeals. Affirmed.

Sheppard & Sheppard, of Poplar Bluff, for appellant.

L. E. Tedrick and Sam M. Phillips, both of Poplar Bluff, for respondent.

FARRINGTON, J.

The plaintiff recovered a judgment in the circuit court as a result of a trial by jury for $4,000, for personal injuries received by him while employed by appellant in crowning joists by means of a band saw.

Several grounds of negligence were charged in the petition, but only two were submitted to the jury in plaintiff's principal instruction. One of these was that the appellant furnished an insufficient number of men to do the work, and the other ground that he permitted planks, upon which the legs of a horse supporting a platform or table rested, to extend out beyond the table or platform at a place where they were liable to trip employees of defendant while working around the table. The petition further alleges that he and a coemployee by name of Cox were turning one of the joists in order that it might be crowned, and in doing so Cox tripped over one of the boards which protruded on the floor some 2 or 3 inches, causing him to fall and thereby throwing the entire weight of the joist onto the plaintiff, causing him to fall and injure his back.

A phalanx of objections are made on the trial below, which we will take up in order.

First, it is charged that witnesses were permitted to testify to conclusions respecting matters of fact to be ultimately found by the jury, as well as objections on questions charged to have been leading. We have gone over these objections and the evidence carefully, and will merely pass them by holding that the error, if any, was not of a reversible nature. It was not error to ask the plaintiff how many men were necessary to move the joist in question. The case of Bowman v. Kansas City Elec. Light Co. (Mo. App.) 213 S. W. 161, is an authority for this statement of the law. Such questions as were shown to be leading do not impress us with having been made with a view of improperly bringing out the facts before this jury. This is, however, always a matter of much discretion with the trial court. Flynn v. Kansas City Rys. Co. (Mo. App.) 220 S. W. 974.

The defendant asked an instruction (No. 4a), which eliminated two of the charges of negligence made in the petition—one was as to sufficiency of the men, and the other was as to the use of a band saw. Had the instruction only contained the charge as to the band saw, it should have been given. It, however, was proper to refuse it, because it did eliminate the question of insufficient help when the evidence tended to show that there was insufficient help, and the plaintiff was entitled to go to the jury on that question, and did go to the jury on that question in its principal instruction. The evidence shows that the weight of this joist that plaintiff and his colaborer were handling was 450 pounds, 24 feet long, 14 inches wide, 2½ inches thick. To properly crown this joist under the method adopted by the defendant it was necessary, first, to bevel off one end of the joist with a band saw and then turn the joist around and bevel off the other end. This injury occurred while they were turning one of the joists after having worked at this job for several days. The plaintiff's version is that, as he was carrying the north end of the joist around to crown off that end, and his cohelper was carrying the south end of the joist, and as his cohelper undertook to walk around the south end of the table he tripped over the planks which had been placed on the floor to make the table higher, and that they both fell or went down, causing him the injuries complained of. The only other witness to the injury was plaintiff's cohelper, and he corroborates plaintiff in the fact that he himself tripped over this plank which ]lad been placed on the floor, thus causing the weight to go on plaintiff, which caused plaintiff to fall.

There is some conflict in their testimony as to just what they were doing with the joists at the time of the injury, and some conflict as to the time of day that it happened. But on the material question at issue, which was whether the helper had tripped over the planks which had been placed on the floor and caused the plaintiff to fall, there is no material difference in their testimony.

We think that it was entirely a question for the jury to say whether an employer had exercised the degree of care required of him under the law when he requires two men to handle the joist of the dimensions and weight that we have heretofore set out where there is an obstruction placed by him on the floor in the direct path over which they are to walk and carry this load. Likewise it is a question of fact for the jury to determine whether he was negligent in leaving the plank in the path in which they were to move in carrying on their work under these conditions. See Tull v. Railroad (Mo. App.) 216 S. W. 572, and Jones v. Queen City Wood Works & Lumber Co. (Mo. App.) 239 S. W. 532.

It is argued that plaintiff's instruction No. 1 is erroneous, in that it submits the question of whether plaintiff's helper stumbled over the protruding leg of the table or plank resting on the floor. The testimony is uncontradicted that he stumbled over the plank on the floor under the leg or the support of the table. While there was no evidence that he did stumble over the leg, it certainly could not have been misleading or prejudicial. As an authority for this see Matney v. K. C., S. & M. R. R. Co., 30 Mo. App. loc. cit. 510; Fields v. Wabash R. R. Co., 80 Mo. App. 603, loc. cit. 607.

Again, it is charged that the court did not define the word "negligence." This is not reversible error. Malone v. St. L. & S. F. R. R. Co., 202 Mo. App. 489, 213 S. W. loc. cit. 867.

The answer in this case was:

First, a general denial—that the injury was the result of an unavoidable accident or negligence of a fellow servant, and a plea of assumption of risk. There was no plea of contributory negligence, yet the plaintiff asked an instruction, which was given, telling the jury that the defendant in its answer, among other defenses, plead contributory negligence, and then went farther, as the usual instruction does, telling them the burden was on defendant. It was undoubtedly error to have given this instruction, but it has been held a number of...