Wallace v. F. Burkhart Mfg. Co.

• Decision Date: 03 March 1928
• Docket Number: 26758
• Citation: 3 S.W.2d 387,319 Mo. 52
• Parties: Ross R. Wallace, a Minor, by Alfred J. Wallace, His Next Friend, Appellant, v. F. Burkart Manufacturing Company
• Court: Missouri Supreme Court

3 S.W.2d 387

319 Mo. 52

Ross R. Wallace, a Minor, by Alfred J. Wallace, His Next Friend, Appellant, v. F. Burkart Manufacturing Company

No. 26758

Supreme Court of Missouri

March 3, 1928

Appeal from Circuit Court of City of St. Louis; Hon. H. A Hamilton, Judge.

Reversed and remanded.

Mark D. Eagleton and Hensley, Allen & Marsalek for appellant.

(1) Defendant's Instruction 3 is misleading and ambiguous in telling the jury that "plaintiff claims that the defendant was negligent and careless in certain particulars . . . and if in your judgment the weight of the evidence is evenly balanced, or preponderates in favor of the defendant then your verdict must be against the plaintiff and in favor of the defendant," thereby causing the jury to believe that they should find against plaintiff if the evidence as to any of the specifications of negligence favored defendant. Gillette v. Laederich, 242 S.W. 112; Clabaugh v. Heibner, 236 S.W. 396; Williams v. Tucker, 224 S.W. 21; O'Neil v. Redfield, 158 Iowa 246. (2) Defendant's Instruction 5 is improper in that it defines ordinary care as such care as an ordinarily prudent man, under the same or similar circumstances, would exercise for his own safety or that of his employees. Buel v. Transfer Co., 45 Mo. 562; Barr v. Kansas City, 105 Mo. 557; Strother v. Milling Co., 261 Mo. 26; Houston Ry. Co. v. Smith, 77 Tex. 179; Reffke v. Paper Co., 136 Wis. 535; L. & N. Railroad Co. v. Gower, 85 Tenn. 465. Said instruction is further erroneous in that it directs a verdict for defendant if the jury should find against plaintiff upon two of the allegations of negligence in the petition, in disregard of the fact that the jury could still find in favor of plaintiff because of defendant's failure to guard the drum, which was the only allegation submitted to them by plaintiff. Ossenberg v. Chemical Co., 218 S.W. 421; Goodwin v. Eugas, 290 Mo. 673; Roseman v. Rys. Co., 197 Mo.App. 337; Nabe v. Schnellman, 254 S.W. 731; Bussey v. Don, 259 S.W. 791; Brooks v. Menaugh, 284 S.W. 803. (3) Defendant's Instruction 6 is confusing and misleading in its terms. (a) It constitutes a covert attempt to submit contributory negligence of plaintiff, which defense is not set up in defendant's answer. White v. Rys. Co., 250 Mo. 476; Stone v. Hunt, 94 Mo. 475. (b) Furthermore, it imposes upon plaintiff the absolute duty to secure a new file, when necessary, instead of the duty to exercise due care in that respect. Campbell v. Mills Co., 211 Mo.App. 670. (4) Since plaintiff submitted the case solely on the issue of defendant's negligence in failing to guard the drum, thereby abandoning the other assignments of negligence, defendant's Instructions 5 and 6 served only to confuse the issue, and should not have been given. Dietzman v. Screw Co., 300 Mo. 215; Nahorski v. Ry. Co., 310 Mo. 237; Denkman v. Fixture Co., 289 S.W. 591. (5) The court's Instruction 7, defining ordinary care and negligence, was misleading and incorrect under the circumstances of this case. It permitted the jury to find the defendant not liable for a violation of the guarding statute, if the defendant exercised ordinary care, ignoring the fact that under the guarding statute the duty to provide a safe and secure guard, when possible, is absolute. Spiva v. Coal Co., 88 Mo. 75; Lore v. Am. Mfg. Co., 160 Mo. 608; Wendler v. Peoples Co., 165 Mo. 527; 5 Labatt, Master & Servant (2 Ed.) sec. 1906.

Fordyce, Holliday & White for respondent.

(1) Defendant's Instruction 3 was not prejudicial to plaintiff because it permitted a recovery by plaintiff if the evidence as to one charge of negligence favored plaintiff, although several charges of negligence were alleged in plaintiff's petition. Spindler v. Wells, 276 S.W. 387; Carpenter v. Burmeister, 217 Mo.App. 111; Webb v. Baldwin, 165 Mo.App. 240; Malone v. Franke, 274 S.W. 372. (2) Defendant's Instruction 5 was proper because it defined "ordinary care" as such care as an ordinarily prudent man, under the same or similar circumstances, would exercise, and applied that definition to the facts in this case. Stanley v. Union Depot Ry. Co., 114 Mo. 619; Quirk v. United El. Co., 126 Mo. 293; Paden v. Van Blarcom, 100 Mo.App. 185. (3) Defendant's Instruction 6 is not confusing or misleading, but if appellant thought so he should have asked an instruction clearing up the confusion, and, failing to do this, he is now barred from protesting its confusion, if any. Bopp v. Sanitary Mfg. Co., 299 S.W. 140. (4) Defendant's Instructions 5 and 6 are not misleading and confusing, but if plaintiff thought so plaintiff should have asked instructions clearing up the confusion and showing the way by telling the jury he had abandoned certain issues in the case, and relied for recovery only on the issue expressed in his main instruction, and failing to do this, he cannot now be heard to complain. Bopp v. Sanitary Mfg. Co., 299 S.W. 140. (5) Instruction 7 was harmless in view of Instruction 1.

OPINION

Graves, P. J.

Action for personal injuries, by a minor through his next friend, for the alleged negligence of the defendant. The petition charged five alleged negligent acts upon the part of the defendant in this language:

"1. That the defendant did negligently and carelessly fail and omit to exercise ordinary care to furnish the plaintiff with reasonably safe tools and appliances with which to work, in that the defendant did require, cause, suffer and permit plaintiff to work with a file used for the purpose of filing parts of a cylinder, which said file was old, slick, dull and thereby incapable of properly doing the work required; all of which the defendant knew, or by the exercise of ordinary care on its part could have known.

"2. That the defendant did negligently and carelessly order, direct and require the aforesaid file in the aforesaid condition to be used under the conditions aforesaid.

"3. That the defendant did negligently and carelessly fail to make proper inspection of said file, when by so doing the defendant could have determined the fact that said file was in the condition aforesaid.

"4. That said defendant did negligently and carelessly order, direct and require the plaintiff to work with said file and to use the same in connection with a cylinder, the teeth of which were pointed in such manner as to catch plaintiff or his clothing and cause him to be drawn into said cylinder and shafting, when, in the exercise of ordinary care, the defendant could have required the cylinder to be placed in such manner that the teeth and points on same would revolve away from the plaintiff and would not catch the plaintiff or his clothing and plaintiff's place of work and method of work was thus and thereby made unsafe and dangerous and not reasonably safe.

"5. That the defendant did negligently and carelessly and in violation of the statutes of this State fail and omit to safely and securely guard said machine shafting and the parts thereof and the cylinder or drum thereon when said parts were so placed as to be dangerous to the plaintiff in the course of his ordinary duties and when it was possible for the defendant to have safely and securely guarded said parts, as aforesaid.

"Plaintiff further states that as a direct and proximate result of the aforesaid negligence and carelessness on the part of the defendant while using said file, as aforesaid, he was drawn into the aforesaid cylinder or drum and was seriously injured in this, to-wit:"

Answer was a general denial. Trial was before the court and a jury. There was a verdict and judgment for defendant, and plaintiff has appealed. The real issues can be narrowed and simplified by a little fuller statement. Learned counsel for the respondent make these statements in their brief in stating the case from their viewpoint:

"There is no question raised by appellant concerning the admission or exclusion of evidence. All points raised by appellant concern instructions given by the trial court.

"Appellant introduced some evidence to substantiate all of said acts of negligence charged, save one, namely, the third assignment of negligence or the failure of defendant to make proper inspection of the file in question, and this charge of negligence was withdrawn from the consideration of the jury by Instruction 4. Respondent asked instructions lettered D, E, F and G withdrawing the four other assignments of negligence charged, but these instructions were refused by the trial court, evidently because there was some evidence offered by appellant to substantiate these charges.

"Appellant chose, after all the evidence was in at the trial of this case, to instruct the jury only on one assignment of negligence charged, namely, the failure of defendant to securely and safely guard the drum or cylinder at which appellant was working at the time he received his injuries.

"The issue of whether or not the drum in question could be safely and securely guarded so as not to interfere with the practical operation thereof was strenuously contested. Evidence was offered by plaintiff that such a guard could be used, while evidence was offered by defendant that such a guard could not be used. And further, defendant showed that such a guard as plaintiff suggested, if used, would be more dangerous to the operator than if no guard was used.

"Defendant's evidence further showed that notices stating, 'These machines cannot be guarded,' were conspicuously placed around the plant, one or more being within fifty feet of the machine in question at the time plaintiff was injured.

"The verdict of the jury was for defendant, and plaintiff in due time appealed his case to this court for hearing."

We have here an admission that upon the vital question, under the submission made by plaintiff, there was...