Williams v. Hyman-Micahels Co.

• Decision Date: 03 November 1925
• Docket Number: No. 18681.,18681.
• Parties: WILLIAMS v. HYMAN-MICHAELS CO.
• Court: Missouri Court of Appeals

277 S.W. 593

WILLIAMS v. HYMAN-MICHAELS CO.

No. 18681.

St. Louis Court of Appeals. Missouri.

November 3, 1925.

Rehearing Denied November 20, 1925.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

"Not to be officially published."

Action by Albert Williams against the Hyman-Michaels Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Earl M. Pirkey, of St. Louis, for appellant.

Fordyce, Holliday & White, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff while in the employ of defendant. The verdict and judgment were for defendant, and, after an unavailing motion for new trial, plaintiff has appealed.

The charging part of the petition is as follows:

"That at the time plaintiff was injured as aforesaid and for some time next prior thereto he was in the service of defendant as a laborer in its yard above mentioned at said plant engaged in the work of loading rails from a platform onto a car, and before said rails were placed on said platform they were gone over by defendant for the purpose of removing the bolts therefrom in order that in loading the men could work faster and would not have to give attention to watching for bolts in said' rails and protecting themselves against bolts in said rails, and defendant at the time plaintiff was injured as aforesaid and for some time next prior thereto negligently required plaintiff and its other employees engaged in said work of loading said rails to hurry unduly, and defendant negligently left a bolt in one rail, and it was not reasonably safe for plaintiff to work at loading said rail from said platform while he was being hurried as aforesaid and when said bolt was in said rail, because there was probable danger of said bolt catching the plaintiff and injuring him or causing him to be injured, and defendant knew or by the exercise of ordinary care would have known when it left said bolt in said rail of the above-mentioned matters and things, but notwithstanding it thereafter negligently left said bolt in said rail and negligently required plaintiff and the men engaged in the same work he was doing to unduly hurry at said work.

"That on or about September 19, 1922, by reason of the negligence of defendant herein mentioned, while plaintiff was as aforesaid engaged in said work of loading rails from said platform onto said car, and was engaged in loading said rail with said bolt in it from said platform into said car, said bolt, because it had been left in said rail, and because plaintiff was being unduly hurried, and because he had been informed and taught by defendant to believe that all bolts had been removed from said rail, caught the glove on his hand and caused plaintiff to fall and be thrown and move partly onto said car and said rail to strike him. * * *"

The answer was a general denial. Inasmuch as the issues raised on this appeal do not necessitate a review of the testimony, it is sufficient to say that there was evidence, though contradicted, to support the charge of negligence in the petition. Plaintiff submitted his case to the jury upon an instruction on the measure of damages alone.

The first point urged by plaintiff for reversal is the action of the court in excluding part of the testimony of witness Robert Lee Jackson, called by plaintiff, as to statements purported to have been made by plaintiff shortly after his alleged accident occurred relative to symptoms of injury. Upon the exclusion of such evidence counsel for plaintiff made the following offer of proof:

"I offer to show that he complained it hurt him very badly and said his left side hurt him, and he was unable to work."

It is argued that, inasmuch as the fact that plaintiff was injured was denied by defendant both in its answer and evidence, the action of the court in excluding this testimony was erroneous, for the reason that such evidence of plaintiff's representations of suffering tended to show that he had been injured, which was a controverted point in the case, and without proof of which plaintiff could not recover. We are inclined to the view that the admission of this evidence would have been proper for the reasons urged by plaintiff; but, conceding that fact to be true, the error in its refusal was harmless, for the reason that plaintiff's right to recover was bottomed primarily upon proof of negligence on the part of defendant, on which issue the verdict of the jury was against him. Accordingly, it was not reversible error to exclude evidence as to the extent of his damages, inasmuch as the jury found that defendant was not liable and did not reach the question of damages at all. Gricus v. United Rys. Co., 291 Mo. 582, 237 S. W. 763; Stark v. Knapp & Co., 160 Mo. 529, 61 S. W. 669; Ogle v. Sidwell, 167 Mo. App. 292, 149 S. W. 973; Buhler Mill & Elevator Co. v. Jolly (Mo. App.) 261 S. W. 353.

Plaintiff's second assignment of error has to do with the giving of instruction No. 4 for defendant. The objection lodged against this instruction is the fact that the words, "direct or proximate cause," are used therein without being defined. We think there is no merit in this contention. Such words have a commonly understood meaning, and to hold that the jury might have been misled by the use of such language without definition would be equivalent to saying that the members of the jury were lacking in ordinary intelligence. Maloney v. United Rys. Co. (Mo. Sup.) .237 S. W. 509; Wolters v. Chicago & A. R. Co. (Mo. App.) 193 S. W. 877. Moreover, if it appeared to plaintiff that the use in this instruction of such expression might have misled the jury, it was his duty to ask an instruction defining his own theory of the law on that subject. Maloney v. United Rys. Co., supra; Berryman v. Southern Surety Co., 285 Mo. 379, 227 S. W. 96; Holmes v. Protected Home Circle, 199 Mo. App. 528, 204 S. W. 202; Gilbert v. Hilliard (Mo. App.) 222 S. W. 1027; Morris v. St. Louis & S. F. R. Co., 184 Mo. App. 65, 168 S. W. 325; Hoagland v. Kansas City Rys. Co. (Mo. App.) 209 S. W. 569; Tucker v. Carter (Mo. App.) 211 S. W. 138; Malone v. St. Louis & S. F. R. Co., 202 Mo. App. 489, 213 S. W. 864; Wolters v. Chicago & A. R. Co., supra.

Plaintiff assigns error in the giving of instruction No. 5 for defendant. This instruction told the jury that the mere fact that plaintiff may have sustained some injury while employed by defendant did not of itself make the defendant liable for such injuries, and that before the plaintiff could recover he must prove by the preponderance of the evidence that such injury was directly caused by some negligence or carelessness on the part of defendant as set out in other instructions. Criticism is directed to the use of the phrase "in other instructions." Plaintiff argues that, since there were no other instructions setting out negligence, this instruction, in effect, required the jury to find for defendant. While it is true that there were no other instructions in the case defining negligence as applied to the particular facts in evidence, the jury could not have been misled by this instruction when read in connection with instruction No. 4, which defined the standard of care required of defendant, and instruction No. 3, which in general terms detailed what plaintiff would be required to prove before he could recover. The use of the phrase "in other instructions" was...