Spaulding v. Missouri Lumber & Mining Company

• Decision Date: 02 June 1914
• Citation: 167 S.W. 663,183 Mo.App. 648
• Parties: J. S. SPAULDING, Respondent, v. MISSOURI LUMBER & MINING COMPANY, Appellant
• Court: Missouri Court of Appeals

167 S.W. 663

183 Mo.App. 648

J. S. SPAULDING, Respondent, v. MISSOURI LUMBER & MINING COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

June 2, 1914

Appeal from Reynolds Circuit Court.--Hon. E. M. Dearing, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

L. B Shuck, L. F. Dinning and W. J. Orr for appellant.

(1) The petition alleges specific negligence and the proofs are directed to a single defect and plaintiff is held to establish the negligence alleged unaided by any presumption. Brit v. Crebo, 158 S.W. 68; Gibler v Railroad, 128 S.W. 791; McGrath v. Transit Co., 94 S.W. 872; Evans v. Railroad, 121 S.W. 36; Orcutt v. Century Bldg. Co., 99 S.W. 1062; Findley v. Box Co., 158 S.W. 23; Newlin v Railroad, 121 S.W. 125; Howell v. Wabash, 129 S.W. 725; Anderson v. Railroad, 130 S.W. 82; Harrington v. Railroad, 146 S.W. 821. (2) It devolved upon the plaintiff to establish: That the appliance was in fact defective, before the accident; that such defect caused his hurt; that the defect was of such a nature and duration that reasonable and ordinary care in inspecting the car would have discovered, or that the defendant had actual knowledge of such defect. Railroad v. Wagoner, 33 Kan. 660; Railroad v. Gaines, 46 Ark. 555; Sherman & Redfield, No. 29; Thompson on Neg., 1053; Wood on Master & Servant, 382; Pierce on Railroads, 373; Goode v. Coal Co., 151 S.W. 508; Current v. Railroad, 86 Mo. 62; Flynn v. U. Bridge Co., 42 App. 529; Bohn v. Railroad, 106 Mo. 429; Howard v. Railroad, 173 Mo. 524; Covey v. Railroad, 86 Mo. 635; O'Mellia v. Railroad, 115 Mo. 205; Glasscock v. Dry Goods Co., 80 S.W. 364. (3) The presumption is that the master has done his duty and this must be met and overcome by proof that the master has failed to exercise that degree of care required of him, and it is not for the defendant to affirmatively show a performance or to account for the accident. Stoeckman v. Railroad, 15 Mo.App. 503; Krampe v. Brewing Co., 59 Mo.App. 277; Breen v. Cooperage Co., 50 Mo.App. 202; Bowen v. Railroad, 95 Mo. 268; Copeland v. Railroad, 175 Mo. 650; Franklin v. Railroad, 71 S.W. 540. (4) The instruction on part of plaintiff which tells the jury that it was the duty of the defendant to furnish appliances reasonably safe, or safe, secure and sufficient, is erroneous in that it incorrectly states the law as to the master's duty. Moore v. Railroad, 93 S.W. 870; Hack v. Railroad, 93 S.W. 826; Bennett v. Lumber Co., 94 S.W. 808; Morgan v. Mining Co., 141 S.W. 740; Henson v. Pascola Stave Co., 131 S.W. 934; Bowden v. Daniell, 132 S.W. 26; Anderson v. Electric Park Amusement Co., 125 S.W. 1198; Haas v. Car Co., 157 S.W. 1040; Vilter Mfg. Co. v. Kent, 105 S.W. 526; Armour & Co. v. Russell, 144 F. 615. (5) An erroneous instruction which purports to be complete within itself and directs a verdict on the facts hypothecated is not cured by conflicting instructions correctly stating the law. Price v. Railroad, 77 Mo. 508; Morgan v. Railroad, 81 S.W. 1158; Thomas v. Robb, 45 Mo. 384; Redpath v. Lawrence, 42 Mo.App. 101; Fath v. R. R., 16 S.W. 913; Bluedorn v. Railroad, 18 S.W. 1103; Hickman v. Link, 22 S.W. 472; Frank v. R. R., 57 Mo.App. 181; Berryman v. Cox, 73 Mo.App. 67; Standard Oil Co. v. Meyer Drug Co., 74 Mo.App. 446; Roberts-Johnson-Rand Shoe Co. v. Sheppard, 70 S.W. 931; Danker v. Goodwin Mfg. Co., 77 S.W. 338; Spillane v. Railroad, 20 S.W. 295. (6) The instruction on the measure of damages is misleading and authorizes a double recovery. McKinstry v. Transit Co., 82 S.W. 1108; Maggioli v. Transit Co., 83 S.W. 1026; Railroad v. Hannig, 43 S.W. 508; Railroad v. Butcher, 84 S.W. 1052; Railroad v. Warner, 54 S.W. 1064; Brewing Co. v. Dickey, 49 S.W. 935; Railroad v. Perry, 82 S.W. 343; Railroad v. McCraw, 95 S.W. 82.

Orchard & Cunningham for respondent; J. H. Raney of counsel.

(1) A bill of exceptions must be filed during the term at which the case is finally disposed of, unless the time for filing same be extended in the manner required by law. And where the record shows that leave was granted plaintiffs to file their bill of exceptions on the fourth judicial day of the next term of court; but the bill was not filed until the 20th day of May, which was the 8th judicial day of the next May term of court, this fact renders the bill worthless as a bill of exceptions, and the fact that the record shows that the bill was filed in open court by consent of parties, gives the bill no judicial standing; after the time expires for filing bill of exceptions, there does not exist any power in the court or out of it, or in the parties, or their counsel, further to extend the time. Dorman v. Coon, 119 Mo. 68; School District v. Boyle, 113 Mo.App. 340. And this is true notwithstanding the amendment to Sec. 2029, R. S. 1909, and the rulings thereon. (2) Where a petition states two separate and distinct causes of action, each constituting negligence, and each sufficient in itself to sustain the cause of action, if there is proof to sustain one, and no proof of the other, the action will not fail. Ott v. Railroad, 12 Mo.App. 168; Oglesby v. Railroad, 150 Mo. 137. And if one of the acts of negligence as charged is not under the law, such negligence as defendant is liable for, and he waits until after verdict before raising objection thereto he will not then be heard if by a liberal construction of the petition it is found sufficient to sustain the verdict. Oglesby v. Railroad, 150 Mo. 137. It has been authoritatively ruled that after verdict the petition should not be most strictly construed against the pleader, but should be construed liberally with a view to substantial justice. Saxton v. Railroad, 98 Mo.App. 494; Farmers Bank et al. v. Manchester Assurance Company, 106 Mo.App. 114; Cameron v. Roth Tool Co., 108 Mo.App. 265. (3) The testimony establishes the fact that the break in the eyebolt was an old one, and it was a question for the jury under all the facts to determine whether defendant was negligent or not. The rule is, that negligence is not a fact which is the subject of direct proof, but an inference from facts put in evidence; it is invisible, intangible, and, like sensible or physical events, generally incapable of direct proof, but is inferred from other facts and circumstances which admit of direct proof and which raise a presumption of the truth of the main fact to be proved. When the facts are undisputed, the question whether an inference of negligence can be deduced is one of fact for the jury under proper instructions. Hoel v. Under Writers Land Company, 158 S.W. 694; Baird v. Citizens Railway Company, 146 Mo. 265; Rose v. Mays, 139 Mo.App. 246; Green v. Railroad, 156 Mo.App. 259. The master is under the duty to make continuous inspection to maintain the appliances in a reasonably safe condition. Kramp v. St. Louis Brewing Association, 59 Mo.App. 277. (4) Appellant in the third paragraph of its brief asserts that the presumption is that the master has done its duty, and this must be overcome by proof that the master has failed to exercise that degree of care required of it and cites a number of authorities in support thereof. We have read all of them and fail to find any such rule laid down in them (but, admit that to be true, we have fully met that by the testimony introduced). We do find however, that the servant has the right to assume that all necessary examinations have been made by the master, and is not required to examine the machinery as to its fitness. Porter v. Railroad Company, 71 Mo. 66; O'Neil v. Blase, 94 Mo.App. 648. (5) Appellant in the fourth paragraph of its brief complains of plaintiff's instruction number 1, in which it tells the jury that it was the duty of the defendant to furnish appliances reasonably safe. Secure and sufficient, is erroneous in that it incorrectly states the law as to the master's duty. And use the words safe, or safe, secure and sufficient. The instruction is reasonably safe, secure and sufficient, and we contend is proper and not open to the criticism made by appellant. The instruction is copied from an instruction passed upon by the Supreme Court of this State, and is almost a literal copy of it; this has never been overruled or criticised so far as we can find. Condon v. Railroad, 78 Mo. 567. Although this case has often been cited the instruction has never been criticised. See also: Porter v. Railroad Company, 71 Mo. 66. But although plaintiff's instruction might not have gone far enough and referred to the affirmative defenses the case might have presented (which we do not admit) but if such is the case the appellant was kind enough to supply that by its instructions. We contend there is no conflict between the plaintiff's and the defendant's instructions, and that whatever was lacking in plaintiff's instruction was supplied by defendant's instructions. Schroeder v. Michel et al., 98 Mo. 43; Reames v. Dry Goods Co., 99 Mo.App. 396; Kingman & Company v. Shawley et al., 61 Mo.App. 54; Ellingson et al. v. Railroad Co., 60 Mo.App. 679; Heman v. The Compton Hill Improvement Company, 58 Mo.App. 480. (6) Appellant in the sixth paragraph of its brief contends that plaintiff's instruction number 2, on the measure of damages is misleading and authorizes a double recovery. We think this contention is untenable. Copeland v. Railroad, 175 Mo. 650; O'Neil v. William Blase, 94 Mo.App. 648; Porter v. Railroad, 71 Mo. 66; Milledge v. Kansas City, 100 Mo.App. 490; Sidekum et al. v. Railroad, 93 Mo. 400; Chartrand v. Railroad, 57 Mo.App. 425; Eberly v. Railroad, 96 Mo.App. 361.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.--

This is a suit for damages accrued to plaintiff through the alleged negligence of defendant. Plaintiff recovered and defendant...