Stutzke v. Consumers' Ice & Fuel Co.

• Decision Date: 21 March 1911
• Citation: 156 Mo. App. 1,136 S.W. 243
• Parties: STUTZKE v. CONSUMERS' ICE & FUEL CO.
• Court: Missouri Court of Appeals

136 S.W. 243

156 Mo. App. 1

STUTZKE v. CONSUMERS' ICE & FUEL CO.

St. Louis Court of Appeals. Missouri.

March 21, 1911.

Rehearing Denied April 4, 1911.

1. DAMAGES (§ 225)—PLEADING—RECOVERY— SPECIFICATION IN PLEADING.

Where a plaintiff in a personal injury case alleged in his petition that, "as a result of such injury, he has suffered loss of wages in the sum of, to wit, $15 per week since the date of the injury," that allegation was not a specification of his entire loss of wages, but merely his loss up to the filing of the petition, and hence, there being additional averments to cover loss for wages up to the time of trial, he was, upon proof of that loss, entitled to recover for it.

2. MASTER AND SERVANT (§§ 109, 226)—INJURIES TO SERVANT—MASTER'S DUTY TO FURNISH SAFE APPLIANCES.

The master must furnish his servants, engaged in hauling, with reasonably safe animals, suitable for the performance of the services required, and hence a master who furnished his servants with mules was held to ordinary care to furnish a gentle and proper mule; the master's duty in this respect not being affected by the rule of assumption of risk on the part of the servant.

3. MASTER AND SERVANT (§ 278)—INJURIES TO SERVANT — ACTIONS — EVIDENCE—SUFFICIENCY.

In an action by a servant against a master for injuries received by being kicked by a dangerous mule belonging to the master, evidence held sufficient to support a verdict for the plaintiff.

4. MASTER AND SERVANT (§ 291)—INJURIES TO SERVANT—ACTIONS—INSTRUCTIONS.

In an action by a servant for injuries received from a dangerous mule belonging to the master, instructions that the servant must prove the mule was a dangerous and vicious animal, which the master knew, but plaintiff did not, and that when he was injured he was exercising ordinary care, and instructions denying the servant's right to recover if the kick was one of the risks incident to his work, and denying a recovery if the mule's viciousness was known to the servant or might have been known to him by reasonable care, were sufficiently fair to the master.

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

Action by August Stutzke against the Consumers' Ice & Fuel Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff brought this action to recover damages of defendant for personal injury suffered by him while in its service from being kicked under the groin by a mule. The jury returned a verdict in his favor for $5,000. Defendant has appealed.

The petition charges as negligence, in substance, that, without giving plaintiff any warning of its dangerous and vicious character, defendant knowingly furnished to plaintiff for his use as driver a mule which was dangerous and vicious, in that it was given to kicking human beings, of which fact plaintiff was ignorant. In stating his damages the plaintiff alleges, among other things: "That, as a result of said injury, he has suffered loss of wages in the sum of, to wit, $15 per week since the date of said injury. Plaintiff further says that, on account of the permanent character of said injury, his earning capacity is seriously and permanently diminished. Wherefore plaintiff states that, by reason of the premises and as a direct result of the said negligence of the said defendant, he has been damaged in the sum of $15,000, for which sum he prays judgment, together with his costs in this behalf expended."

The answer contained a general denial, and "for a further defense the defendant states that all of the habits of the mule referred to in plaintiff's second amended petition on the occasion in question were open and obvious and were known to the plaintiff; and whatever dangers, if any, existed in working with and about said mule, were open and obvious and were known to plaintiff, or by the exercise of ordinary care would have been known to plaintiff, and that plaintiff assumed whatever risk, if any there was, in working with and about said mule, on said occasion." The reply was a general denial.

The evidence discloses that in May, 1906, the defendant's manager employed plaintiff as helper on an ice wagon. He worked as helper for six or seven weeks at $12 a week, when the manager employed him as driver of a team of mules attached to an ice wagon at $15 a week. He was given no warning by the superintendent or any one else that either of the mules were given to kicking. One of the mules was a big dark mule called "Jack." Part of plaintiff's duties was to unharness the mules when the day's ice delivery was completed and to hang the harness on a peg. The peg provided by defendant to hang the harness on was located in the rear of the stall. On August 23, 1906, after plaintiff had been driving the team about three weeks, the mule kicked him in the groin as he was hanging up its collar on the peg. The injury thus received brought on gangrene with resultant amputation of the leg. There was ample evidence that the mule was dangerous and vicious, in that it was given to kicking human beings, and that plaintiff's manager had had direct, positive, and repeated notice of its dangerous and vicious propensity, long before he had employed the plaintiff. There is no evidence that at any time before he was kicked plaintiff was given any warning, by any one, of the mule's vicious proclivity. The plaintiff testified that he had received none, and the defendant's manager testified that he had given him none. In fact, the defendant strove to establish, and its evidence had a tendency to prove, that the mule was gentle and not given to kicking unless beaten, and that plaintiff was drunk when the mule kicked him. The plaintiff did testify that prior to the time the mule kicked him "most of the time he acted queerly. He would make a mean motion all the time." But he explained this later by saying that he attributed it to the mule feeling good in consequence of having been resting in the stable for a day or two. He testified that the mule had never indicated to him any inclination or disposition to kick prior to the time of the kick which caused the injury on account of which this suit was brought. His cross-examination may be said to have elicited that if he had not stood in the particular place he did when hanging up the harness, but had stepped to one side a little, the mule might not have been able to have reached him, but that that would have been awkward and unusual, also, that he might have unharnessed the mule out in the yard and carried the harness in, but that that would have been unusual. Upon cross-examination he was asked questions and gave answers to the effect that all mules are apt to kick and one has to be guarded about them; but he also stated that equal care was needed about horses, and that some mules are dangerous and some are not. It is difficult to tell from the record just how much of the plaintiff's statements tending to show that all mules are dangerous is attributable to timidity, ignorance, and confusion, and how much was due to mere tiredness superinduced by constant repetition of the same question, finally very properly stopped by the court. There were other witnesses who gave testimony tending to prove that mules as a class were not usually dangerous. The plaintiff's evidence tended to prove that he had lost his leg as a result of the injury, and had suffered a substantially total loss...