West v. Hollady

Decision Date21 May 1917
Docket NumberNo. 1984.,1984.
Citation196 S.W. 403
PartiesWEST v. HOLLADY.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Scott County; Frank Kelly, Judge.

Suit by Marion West against Charles Hollady. Judgment for plaintiff, and defendant appeals. Reversed.

John McWilliams, of Benton, and Davis & Hardesty, of Cape Girardeau, for appellant. W. L. Proffer, of Illmo, and Thomas F. Lane, of Cape Girardeau, for respondent.

STURGIS, J.

The defendant is one of several partners operating a box factory at Fornfelt, Mo., in whose employ the plaintiff was when he received the injuries sued for. In this factory was a large vat into which blocks or short sections of logs were placed in hot steam preparatory to working them into box material. After being properly steamed, these blocks were raised from this vat by a cable operated by compressed air and attached to the blocks with what is called tongs or hooks, fastening in the familiar manner of ice tongs. It was the business of the operator of the hoister to fasten the hooks or tongs into the blocks and then turn on the power. The two prongs of the hooks crossed and were fastened to the cable in such manner that the pulling of the cable tightened the hold on the block, and the greater the weight the harder they pressed together and the firmer the hold. The plaintiff was working at another job, but, by authority of the manager, the operator of the hoister called him to assist in raising a block larger than ordinary. While doing so the tongs slipped loose and struck plaintiff on the forehead, injuring him. The negligence alleged in the petition is stated thus:

"Plaintiff further states that the defendants were guilty of negligence in failing to provide safe and sufficient appliances, in this, that the power provided for said hoisting machinery was insufficient, and that the iron and steel tongs used to grab the blocks of wood were worn and in an unsafe condition, and that, by reason of the insufficient power and of the worn and unsafe condition of the tongs, said tongs suddenly came loose from their hold of the block of timber, causing the cable and tongs of said hoisting machinery to suddenly fly up with great force and to strike the plaintiff on the forehead, as aforesaid, and wounding and injuring the plaintiff, as aforesaid."

Plaintiff recovered judgment for $600, and defendant appeals.

The evidence is to the effect that the power used was at times insufficient to raise the larger blocks, especially when other similar hoisters were being operated at the same time. On such occasions the operator, as he did here, called some other workman to his assistance, and it was the duty of such workman to so assist. The plaintiff, being called by the operator on this occasion, rendered assistance by using an iron bar some 10 or 12 feet long which he placed through and under the forks of the tongs, and, catching the far end of the same in a wooden door which then acted as a fulcrum, lifted or pried up on the bar. The man power was thus applied at the forks of the tongs immediately under the point where the cable was attached; the effect being the same as if additional power had been applied to the cable. It was proven that on other occasions, and with some frequency, these tongs would come loose from blocks and fly up, and various reasons or causes were given by the witnesses for both sides as to why this would happen. One witness testified that one of two things caused the tongs to come loose from the blocks, to wit: Either the hooks were dull or the hold pulled out. One of plaintiff's witnesses, when asked as to the cause of the tongs flying loose, testified:

"A. Well, sometimes by the block not being sound and sometimes in not catching deep enough hold; sometimes the block would not be sound; at other times, if the operator wasn't careful to catch a good hold, it would fly out; but if the operator was careful it hardly ever occurred; the hooks never slipped off; the hold would pull out of the block, you understand, if you didn't have a good hold; sometimes the end of the log would be doty and pull through, but when the end of the log was solid and you got a good hold, I never had it to pull out. Q. Then as to whether or not the hooks would hold to raise the block would depend on the manner it was caught? A. If the man operating the hook is noticing his business, that's the size of it."

Many assignments of error are made, but all of them need not be noticed. Plaintiff's principal instruction, covering the entire case and authorizing a verdict recites:

That it was defendant's duty to use ordinary care to furnish plaintiff reasonably safe tools, machinery, and appliances with which to work, and if plaintiff was called, and was assisting the operator, Charley Kerley, in raising a block of wood out of this steam vat, "and you further find that defendant failed to use ordinary care to furnish plaintiff with reasonably safe, sufficient tools, machinery, and appliances with which to do said work, and you further find by reason of the unsafe, insufficient condition of said machinery and appliances the tongs or hooks used on said hoisting machinery suddenly came loose from said block of wood which the said Charley Kerley and the plaintiff were attempting to lift out of said vat, and that said tongs or hooks flew up with great force, striking over the left eye and wounding him, and by reason thereof plaintiff was injured and damaged thereby, then the court instructs you that your finding should be for the plaintiff."

The above instruction is palpably erroneous, in that it is too general and indefinite and does not confine the grounds of negligence on which plaintiff might recover to those alleged in the petition. No one can tell by reading this instruction on what specific grounds of negligence the action is based, or in what particular or in what respect defendant was charged with, and the jury must find the defendant guilty of, violating the general duty to furnish reasonably safe machinery, tools, and appliances. The petition specifies two grounds of negligence: (1) The worn and dull tongs used to grab the blocks of wood; and (2) insufficient air power to raise such blocks. The instruction mentions neither of these grounds, but allows the jury a free hand in basing a verdict on the broad and general finding that the defendant in some manner or in some respect was negligent in not furnishing safe machinery, tools, and appliances. It needs no citation of authorities to sustain the proposition that the instructions should conform to the pleadings and should point out and predicate plaintiff's right to recover on a finding of the truth of those, and only those, grounds of negligence which have been alleged and which the evidence supports.

When there are specific grounds of negligence alleged the case is confined thereto, and recovery cannot be permitted on any unspecified or undefined negligence. Bryan v. Lamp Co., 176 Mo. App. 716, 728, 159 S. W. 754; Black v. Railroad, 217 Mo. 672, 683, 117 S. W. 1142; Beave v. Transit Co., 212 Mo. 331, 351, 111 S. W. 52; Mark v. Cooperage Co., 204 Mo. 242, 261, 103 S. W. 20.

Plaintiff suggests that the doctrine of res ipsa loquitur applies here, and that plaintiff can recover on general negligence. This case, however, was not brought or tried on any such theory, even if the facts and nature of the case would so permit, which we think they would not. The plaintiff, by his petition, says he knew in what respect and in what way the defendant was negligent and proceeds to designate two specific grounds. The doctrine of res ipsa loquitur properly applies only in those cases where the plaintiff is not presumed to know, and therefore cannot be required to specify, the particular acts or grounds of negligence. But, where the plaintiff does know and specifies such particular grounds in his petition, the doctrine of res ipsa loquitur, like other presumptions which flit only in the twilight, disappears in the light of the facts. Roscoe v. Railroad, 202 Mo. 576, 587, 101 S. W. 32; Black v. Railroad, 217 Mo. 672, 686, 117 S. W. 1142; ...

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