Steiner v. Moran

• Decision Date: 10 April 1876
• Citation: 2 Mo.App. 47
• Parties: ERNEST STEINER, Respondent, v. WILLIAM MORAN, Appellant.
• Court: Missouri Court of Appeals

2 Mo.App. 47

ERNEST STEINER, Respondent,

v.WILLIAM MORAN, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 10, 1876.

1. Though the testimony for one side of an issue may appear to be entirely satisfactory, a verdict for the other will not be disturbed if there is some testimony in the cause tending to disprove the former.

2. Action for damages sustained by an employé, in consequence of failure by his employer, the defendant, proprietor of a brewery, to provide sufficient guards and appliances for the prevention of accidents on the premises; form and substance of instructions on both sides approved, as in harmony with former decisions in this State and elsewhere.

3. Instructions for defendant, to the effect that, if the plaintiff knew of the opening through which he fell, and that it was carelessly kept, and yet continued to work on the premises, he did so at his own risk, and could not recover, were properly refused.

APPEAL from St. Louis Circuit Court.

Affirmed.

A. J. P. Garesché, for appellant, cited: Dascomb v. Buffalo & Lake Shore R. R. Co., 27 Barb. 221; Herring v. Wilmington & Raleigh R. R. Co., 10 Ired. 407; Spofford v. Harlow, 3 Allen, 179; Boland and wife v. Missouri R. R. Co., 36 Mo. 492; Callahan v. Warne, 40 Mo. 136; Pittsburgh v. Evans, 53 Penn. 255; Shear. & Redf. on Neg. (3d ed.), sec. 86, p. 128, sec. 99; Hill. on Torts (4th ed.), 463; Id. (2d ed.) 460, 461; McDermott v. Pacific R. R. Co., 30 Mo. 117; Devitt v. Pacific R. R. Co., 50 Mo. 305; Honder v. Baltimore R. R. Co., 32 Md. 411; Smith v. City of St. Joseph, 45 Mo. 449; Walsh v. Mississippi Tr. Co., 52 Mo. 438; Wyatt v. Citizens' R. R. Co., 55 Mo. 485.

Gottschalk, for respondent, cited: Walsh v. Mississippi Tr. Co., 52 Mo. 434; Smith v. City of St. Joseph, 45 Mo. 449; Wyatt v. Citizens' R. R. Co., 55 Mo. 485.

LEWIS, J., delivered the opinion of the court.

Plaintiff, a workman in defendant's brewery, sued for $5,000 damages, on account of injuries resulting from a fall through an air-hole into a cellar on the premises, while engaged in the line of his duty as defendant's employé. He obtained a verdict of $500; from the judgment upon which defendant appeals.

The testimony tended to show that the plaintiff went to work for defendant on February 19, 1873, and the mishap occurred the evening of the next day, after dark. That the air-hole was in or near a passage-way through which plaintiff had to pass, where there were no lights, nor any guard or other method of warning about the opening. Slats, about two and a half inches apart, had been placed across the opening, but it was observed, some two or three hours after the accident, that one or two of them had been broken out. The plaintiff was sufficiently injured by the fall to be unable to work in the ensuing six months.

There was, as nearly always happens in similar cases, a good deal of conflicting testimony. Abundant material, which the counsel here utilizes with undeniable force, is thus furnished for an argument in defendant's behalf upon the facts in the case. It is shown to us that the statements of some of the witnesses tend to establish theories utterly inconsistent with any right of recovery in the plaintiff; as, that the widest opening left by broken slats was only eight inches, through which the plaintiff could not possibly have fallen; that plaintiff, as a brewer of fifteen years' experience, must have known that air-holes were necessary in every brewery, and, therefore, he knew all about this one, or else was guilty of gross negligence in not finding it out; that plaintiff was furnished by defendant with a light, but willfully refused to make such a use of it as would have prevented the accident, etc. But however we might be convinced, by the able argument of counsel, that we could never render a like verdict upon the same testimony, we would be precluded by long settled law from giving practical effect to such a conviction in the present case. There was at least some testimony tending to disprove every theory upon which the defendant so insists; and, the jury having discharged their exclusive function of determining which side is entitled to prevail, we have no authority to disturb their verdict. An unavoidable application of this indispensable rule disposes of numerous points made by counsel for appellant to show that the verdict was against the evidence. The only exceptions saved were to the giving or refusing of instructions, and to the overruling of the application for a new trial. These matters, therefore, must comprehend the limits of our review. The instructions given for the plaintiff were as follows:

“The court instructs the jury that, if they find for the plaintiff, they will assess his damages at such a sum, not exceeding $5,000, as they believe from the evidence to be a reasonable compensation for the injuries he has sustained, the pain and suffering caused thereby, the expenses of his medical treatment for such injuries, and the loss of time resulting from such injuries, if any such have been shown in evidence; and, in assessing the damages, the jury will take into consideration the nature of the injuries, whether or not they are of a permanent character; how, if at all, they will affect the ability of plaintiff in the future to earn a living; how,...