Wair v. American Car & Foundry Co.

• Decision Date: 01 June 1926
• Docket Number: No. 19489.,19489.
• Citation: 285 S.W. 155
• Court: Missouri Court of Appeals
• Parties: WAIR v. AMERICAN CAR & FOUNDRY CO.

285 S.W. 155

WAIR v. AMERICAN CAR & FOUNDRY CO.

No. 19489.

St. Louis Court of Appeals. Missouri.

June 1, 1926.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

"Not to be officially published."

Action by Eddie Wair, an infant, by Delia Wair, his next friend, against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Watts & Gentry and Arnot L. Sheppard, all of St. Louis, for appellant.

Mark D. Eagleton, Everett J. Hullversdn, and Harry S. Rooks, all of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff on April 8, 1923, while he was engaged in helping carry an axle in defendant's plant. The verdict of the jury was for plaintiff in the sum of $1,500, and judgment was rendered thereon, from which defendant has appealed.

The negligence charged in the petition was as follows:

"(1) Defendant negligently and carelessly furnished plaintiff with a pair of tongs, the size of which and the space between the jaws of which was too wide for the purpose for which plaintiff was using them, and would not clamp onto said material, when defendant knew or by the exercise of ordinary care would have known that said material would be likely to slip from said tongs and would be likely to strike and injure plaintiff.

"(2) Defendant negligently and carelessly ordered, directed, caused, suffered, and permitted plaintiff to use the tongs as aforesaid, which were too large for the work being done, and were not proper tongs for said work, when defendant knew or by the exercise of ordinary care would have known that plaintiff in so using said tongs would be likely to be injured.

"(3) In negligently and carelessly assuring plaintiff that he could with reasonable safety to himself use said tongs in said work, when defendant knew or by the exercise of ordinary care could have known that by and on account of the reasons aforesaid said tongs were unsuitable for said work and plaintiff would be likely to be injured.

"(4) In negligently and carelessly failing and omitting to furnish plaintiff with a reasonably safe tongs and tongs which were reasonably safe to permit plaintiff a tight grip on said piece of metal so that said metal would not slip from the grasp of said tongs."

The answer was a general denial coupled with a plea of contributory negligence. The reply was conventional.

Plaintiff was 17 years of age at the time his injury was received, and had been working for defendant as a laborer for approximately 4 months. At the time he was injured, he was engaged with 3 other employés in moving axles. These axles were first brought on a buggy to a hammer, and then were removed from the buggy and broken by the hammer into halves, after which the pieces were carried away by the 4 men by means of tongs, and stacked in piles at a distance of 15 feet from the hammer. The halves ordinarily weighed about 250 pounds each, and were approximately 3 feet in length. Three pairs of tongs were furnished by defendant, and were kept near the hammer for use in carrying the broken pieces. The tongs had handles and jaws, and were about 2 feet long. The smallest were 5 inches, the second size 7 inches, and the largest 9 inches, in diameter. All 4 men carried each piece of axle, two being at each end, and two pairs of tongs being used. Plaintiff and his partner did not use the same tongs upon all occasions. When the men started to carry the piece of axle, which fell upon plaintiff's foot and injured it, the two men who were lifting on the back end had the small tongs, having picked them up before plaintiff had an opportunity to get them. Plaintiff then selected the medium sized pair, which were 7 inches in diameter, which he and his partner used to hold the front end. The axle itself was about 6 inches in diameter. In lifting the axle upon the pile, the tongs plaintiff was using slipped by reason of the fact that they were too large to grip the axle securely and permitted it to fall, striking plaintiff's right foot and injuring it. There was a fracture of the second metatarsal bone, resulting in a permanent thickening of the bone which caused pain in walking or when pressure was applied upon it.

Earlier in the morning, plaintiff had informed his foreman there was only one pair of the small tongs available, and that the other pairs were too large for the work. The foreman, however, told him that the tongs supplied were the ones that defendant used for that purpose, and ordered him to re", turn and use them.

Defendant's evidence `disclosed that, when plaintiff was put to work carrying the axles, he was advised by his foreman to use a small pair of tongs, and was supplied by him with such a pair. The foreman testified that there were two pairs of small tongs at the hammer upon that occasion, in which testimony he was corroborated by the operator of the hammer and by two of the men who were working with plaintiff. The fourth man in the crew was plaintiff's brother, who was not present at the trial of the case. The permanency of the injury was also denied by defendant's medical expert. Error is assigned to the action of the court in overruling the demurrer to all the evidence.

Plaintiff's third assignment of negligence, having to do with defendant's alleged negligent assurance to plaintiff that he could use the tongs with reasonable safety, was withdrawn by the court. The second assignment with reference to the alleged negligent order to use the large tongs was apparently abandoned by plaintiff, and the case submitted to the jury upon the alleged negligence of defendant in furnishing plaintiff with a pair of tongs which were too wide for the purpose for which plaintiff was using them, and which were not reasonably safe.

The stated facts show that whether or not there were two pairs of the 5-inch tongs furnished by defendant was a highly contested issue at the trial of the case; plaintiff alone testifying that only the one pair was available, in which statement he was contradicted by the foreman, the operator of the hammer, and two of the men who were working with him, all called as witnesses for defendant. However, we are mindful that on demurrer plaintiff's evidence, whether contradicted or not, must be regarded as true, so long as it is not impossible as opposed to the physics of the case or entirely beyond reason, and defendant's evidence must be taken as false, where it is contradicted by that of plaintiff. Williams v. K. C. S. R. Co., 257 Mo. 87, 165 S. W. 788, 52 L. R. A. (N. S.) 443; Stauffer v. Met. St. Ry., 243 Mo. 305, 147 S. W. 1032; Van Raalte v. Graff, 299 Mo. 513, 253 S. W. 220; Peters v. Lusk, 200 Mo. App. 372, 203 S. W. 250; Dawson v. Chicago, B. & Q. R. Co., 197 Mo. App. 169, 193 S. W. 43; Conley v. Lafayette Motor Car Co., 204 Mo. App. 37, 221 S. W. 165. In the light of the above rule, we think that clearly there was substantial evidence to justify the submission of the case to the jury. In fact, defendant does not question the above conclusion, but argues that plaintiff, on cross-examination, testified to a state of facts diametrically contradictory of what he had testified to on direct examination, without any claim of mistake or oversight or misunderstanding, from which it follows that he failed to make a prima facie case, and that, under such circumstances, the appellate court should consider defendant's evidence as well as that of plaintiff. We cannot agree with this contention, however. Plaintiff was a colored boy, apparently uneducated, and only 18 years of age at the time of the trial, and a careful reading of his testimony discloses to our minds that the alleged contradictions in his evidence were not the result of willful perjury, but were rather due to the indiscriminate use of personal pronouns and a misunderstanding of questions asked during a long and artful cross-examination by able counsel. Rigley v. Pryor, 290 Mo. 10, 20, 233 S. W. 828; Kelly v. Kansas City Railways Co. (Mo. App.) 225 S. W. 133, 134.

It is most earnestly contended by defendant that the court erred in commenting upon the evidence of Dr. Kinder, a witness for plaintiff, and upon objection thereto, such alleged error having been committed during the doctor's cross-examination and again during his redirect examination. During the cross-examination, while defendant's counsel was endeavoring to show the extent to which the doctor was used as a witness in court and the charges that he made for testifying, the following occurred:

"Q. If you come to court on four or five different cases in one day, do you make a charge in each case?

"Mr. Hullverson: I object to that, if the court please.

"The Court: This court wants to say I hope he would; I don't see where there is any harm for doctors being paid any more than for a lawyer.

"By the Court: Q. You do, don't you? A; Yes, sir; if I have four or five patients at the hospital, or two or three, I charge each one, just the same as though there is only one patient; that is my good luck, and if I happen to come to court and testify in more than one case a day, I charge for each case individually.

"Mr. Sheppard: I would like to make my record, your honor, and I would like to except to your honor's remarks.

"The Court: All right, you may. I want to repeat that any doctor who didn't expect to be paid a reasonable fee for the services he rendered ought to quit practicing just like a lawyer.

"Mr. Sheppard: I except to the court's remarks.

"The Court: Yes; you may, and I will reiterate it now, you may say this the third time, and I want to add to it, this: That I haven't found many lawyers for plaintiffs or defendants in my days that didn't expect to be paid for their services a reasonable fee for those services that had been rendered, and now you may save an exception to that.

"Mr. Sheppard: I agree with your honor on that.

"The Court: Go ahead, gentlemen."

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