Opinion
November 18, 1930.
1. NEGLIGENCE: Charges: Withdrawal. Where there is substantial evidence tending to support each separate charge of negligence, separate instructions, asked by defendant, severally withdrawing the separate charges from the consideration of the jury, should be refused.
2. ____: ____: ____: Inference. Though there is no evidence in specific words to support a charge of negligence, but substantial evidence from which an inference necessarily follows sustaining the charge, an instruction withdrawing the charge should be refused.
3. ____ Order to Do Work. Testimony that the boiler-maker and his helper, the plaintiff, both in the employ of defendant, were directed by defendant's foreman to put up the tackle for the bricklayers to get inside the high smokestack being constructed; that the boiler-maker, with whom plaintiff was working, had authority to give orders and direct the work; that the plaintiff, before he attempted to ascend the smokestack, asked the boiler-maker if it were "all right to go up," and that the boiler-maker answered that it was "all right to go up," is evidence tending to support the charge that defendant ordered plaintiff to ascend the smokestack, and is evidence from which the jury may find that the assurance of the boiler-maker was equivalent to an order to plaintiff by defendant to ascend the smokestack.
4. VERDICT: Excessive: $20,000: Hump-Back. Plaintiff had a marked hump-back, or curvature of the spine, which was congenital and had existed from his birth. He was 36 years of age, and before the accident had been in good health and had been earning $37.40 per week as a boiler-maker's helper. He fell from a high smokestack when the defective equipment by which he was ascending gave way, receiving injuries to the lower vertebrae, and a broken ankle; his back is tender and swollen, and he must constantly wear a steel brace; the sprained condition of his spine is permanent; he can never perform manual labor, and has suffered and will continue to suffer severe pain, and is a helpless cripple and will continue to be during his life; he has incurred $275 for medical attendance, and has lost $3,000 in wages. Held, that a verdict for twenty thousand dollars was not excessive.
Appeal from Circuit Court of City of St. Louis. — Hon. Robert W. Hall, Judge.
AFFIRMED.
Fordyce, Holliday White for appellant.
(1) Where an instruction withdrawing an assignment of negligence is in proper form, and there is, according to law, no evidence in the record to support said assignment, it is error to refuse to give and read said instruction to the jury; for this reason it was error to refuse to give defendant's Instruction C; for this reason it was error to refuse to give defendant's Instruction D, and for this reason it was error to refuse to give defendant's Instruction F. Roseman v. Railways Co., 197 Mo. App. 343. (2) The verdict was excessive and the result of passion and prejudice on the part of the jury. Lessenden v. Ry. Co., 238 Mo. 247; Holzemer v. Ry. Co., 261 Mo. 379.
Mark D. Eagleton, John F. Clancy and Hensley, Allen Marsalek for respondent.
(1) The evidence tended to show that the block, which defendant provided, was larger than the blocks customarily used in such work, and was too large for the S-hook, or conversely, that the S-hook was too small. The court, therefore, properly refused to instruct the jury that the assignment of negligence on defendant's part in furnishing said appliances was withdrawn from their consideration. Dakan v. Merc. Co., 197 Mo. 254; Oborn v. Nelson, 141 Mo. App. 434; Clonts v. Elec. Co., 160 Mo. App. 472. (a) The evidence that the appliances differed from those customarily used was an important factor to be considered in determining defendant's negligence. Smith v. Fordyce, 190 Mo. 24; Huhn v. Railroad, 92 Mo. 449; Bennett v. Traction Co., 209 Mo. App. 627; Whelan v. Zinc Co., 188 Mo. App. 603; Lightner v. Dunham (Mo. App.), 195 S.W. 1057; Kinney v. St. Ry. Co., 261 Mo. 97. (b) If the evidence supports sufficient of the facts alleged in an assignment of negligence to show liability on defendant's part, the matter becomes one for the jury; and under such circumstances it would not be proper for the court to instruct them to disregard the entire specification of negligence, even though part of the facts alleged in connection therewith were unproven. Mecker v. E.L. P. Co., 279 Mo. 600; Van Horn v. Transit Co., 198 Mo. 481; Gannon v. Gas Co., 145 Mo. 502; Yost v. Cement Co., 191 Mo. App. 434. (c) Withdrawal instructions should not be given which entrench upon allegations of negligence supported by evidence and which are properly for the jury's consideration. Komor v. Fdy. Co. (Mo. App.), 300 S.W. 1028; Latham v. Hosch, 207 Mo. App. 381; American Auto Ins. Co. v. U. Rys. Co., 200 Mo. App. 317; Schulz v. Smercina (Mo.), 1 S.W.2d 113; Kinlen v. Railroad, 216 Mo. 162; Kendrick v. Ryus, 225 Mo. 169. (2) The court properly refused Instruction D, which sought to withdraw defendant's negligence in furnishing an S-hook which was not sufficiently curved. The testimony proved this fact, and it was for the jury to say whether defendant was negligent in this regard. (3) The court properly refused defendant's Instruction F. There was sufficient evidence from which the jury could find that Schnieders, who was on the roof, could have discovered that the equipment was in danger of falling with the plaintiff, in time to have warned plaintiff thereof; that he negligently failed to do so, but, on the contrary, assured plaintiff that it was reasonably safe for him to use said appliances, and ordered plaintiff to proceed with the work. These allegations of negligence were sustained by evidence, and consequently the court properly refused to withdraw them. Authorities, Point L supra; Cox v. Granite Co., 39 Mo. App. 424; Stephens v. Railroad, 96 Mo. 207; Hoover v. Mining Co., 160 Mo. App. 326. (4) The award of damages made by the jury and approved by the trial court was reasonable and should not be disturbed on appeal. (a) The evidence on this subject should be taken in its light most favorable to plaintiff. Manley v. Wells (Mo.), 292 S.W. 67; Busby v. Tel. Co. (Mo.), 287 S.W. 434; Westervelt v. Transit Co., 222 Mo. 325; Deland v. Cameron, 112 Mo. App. 710; Tucker v. Kollias (Mo. App.), 16 S.W.2d 649. (b) It was the peculiar province of the jury to determine the extent of plaintiff's injuries and the compensation he was entitled to recover therefor. Hoover v. Ry. Co. (Mo.), 227 S.W. 79; Maloney v. Rys. Co. (Mo.), 237 S.W. 516; Sacre v. Ry. Co. (Mo.), 260 S.W. 88. (c) The trial court, in supervising the amount of the verdict, exercises a discretionary power, which should not be reviewed on appeal except under the same conditions that obtain where other discretionary functions of the trial court are brought into question. 4 C.J. 830, 871: Goetz v. Ambs, 27 Mo. 34; Gurley v. Railroad, 104 Mo. 233; Laughlin v. Ry. Co., 275 Mo. 472. (d) An appellate court will not interfere with the award of damages unless the amount "is so glaringly unsupported by the evidence as to shock the judicial sense of right, or compel a conviction that the verdict was the result of prejudice, passion or bias." Manley v. Wells, supra; Laughlin v. Rys. Co., supra; Grott v. Shoe Co., 2 S.W.2d 785. (e) The damages are reasonable by comparison with verdicts upheld in cases involving similar injuries. Taylor v. Railroad, 311 Mo. 604; Corby v. Tel. Co., 231 Mo. 447; Stein v. Rainey, 315 Mo. 548; Brickell v. Fleming (Mo.), 281 S.W. 951; Messing v. Judge Dolph Drug Co., 18 S.W.2d 408; Bond v. Railroad (Mo.), 288 S.W. 777.
This case came to me on reassignment. Suit to recover for personal injuries sustained in the course of employment. Plaintiff charges that defendant negligently furnished him with unsafe and dangerous appliances with which to perform certain work; that it negligently failed to warn him of the danger of using said appliances; that it negligently assured him it was reasonably safe to proceed with said appliances and that it negligently ordered him to use said appliances in the performance of the work. The answer is a general denial. Judgment for $20,000, and defendant appealed.
Appellant did not favor us with a statement of the case as required by Rule 15, and we cannot determine from the record the function of appliances making up the equipment used by respondent in performing the work. For this reason we cannot make an understandable statement.
One Schneiders, boiler-maker, and respondent, his helper, both in the employ of appellant, were directed by its foreman "to put the tackle up for the bricklayers to get on the inside" of the smokestack of the Mississippi Glass Company Building. In so doing, they worked from the roof of the building, and it was necessary for one of them to ascend the stack, which is one hundred and fifty feet in height and seventy-two inches in circumference. The stack was built in sections, thirty feet in length, and junctions of the sections were covered by iron bands circling the outside of the stack. To ascend, an S-hook is hung over a band, one end of a rope is fastened to a block at the base of its hook, the rope is passed over the lower end of the S-hook, and by pulling the other end of the rope the block is drawn upward toward the S-hook. When the block reaches the S-hook, it should trip or fall into the lower hook of the S-hook. A seat for the workman is a part of the equipment, and this, in some way not explained, is drawn upward from band to band until the workman reaches the top of the stack. By use of the equipment, respondent ascended the stack to the first band. He then, in some way not explained, hung another S-hook over the second band from the roof, passed the rope over the lower end of the said hook and proceeded to pull himself upward to the second band. When he reached a point about forty feet from the roof, the block hook failed to "trip into" the S-hook, and the lower curve of the S-hook straightened, thereby causing the rope to slip therefrom, and respondent, with all the equipment, except the S-hook, fell to the roof.
Negligence is charged in four paragraphs of the petition. At the close of the evidence appellant, by instructions, requested the court to withdraw from the jury the charges of negligence alleged in all the paragraphs. It does not complain of the refusal of its instruction withdrawing the charge Withdrawal that the S-hook "was not of adequate strength for Instructions. the work for which it was then and there being used," but contends there is no evidence to support the charges of negligence alleged in the other paragraphs.
Appellant concedes there is evidence tending to show the S-hook was too small, but contends there is no evidence tending to show the block and its hook were too large, as charged in the first paragraph. Schneiders gave testimony tending to sustain this charge of negligence. However, assuming no witness so testified, still, there is evidence tending to show the block and its hook were too large. We so hold, for if the S-hook was too small to permit the block and its hook to "trip in," it follows the block and its hook were too large to "trip in."
Appellant also contends there is no evidence tending to show that the S-hook was not sufficiently curved, as charged in the second paragraph. On this question Schneiders testified as follows:
"Q. When you got those S-hooks that morning, were both of the S-hooks alike? A. No, sir.
"Q. How were they different? A. Well, one was short and ought to be bent in a little more.
"Q. Should have been bent in a little more? A. Yes, sir."
The S-hook referred to was the hook from which the plaintiff fell.
Appellant also contends there is no evidence tending to show it negligently ordered respondent to ascend the stack, as charged in the fourth paragraph. There is evidence tending to show that respondent was working with Schneiders, who had Negligent authority to give orders and direct the work, and that Order. respondent, before the proceeded to ascend, asked Schneiders whether it was "all right to go up," and Schneiders answered that it was "all right to go up." We hold that the jury could find that under the circumstances this assurance of Schneiders that it was "all right to go up" was equivalent to an order to respondent to ascend the stack. [Stephens v. Railroad, 96 Mo. 207, 9 S.W. 589; Cox v. Granite Co., 39 Mo. App. 424; Hoover v. Mining Co., 100 Mo. App. 326, 142 S.W. 465.]
The contentions are overruled.
Appellant also contends the verdict is excessive. It states the evidence tending to show plaintiff's condition as Excessive follows: "Plaintiff's medical evidence revealed in the Verdict. testimony of plaintiff's doctors that plaintiff was a man having a marked hump-back; that is, a curvature of the spine, or medically termed kyphosis; and that this condition had existed for some time prior to the injury in question, and, in all probability, had existed since birth or early childhood, and was not due to the injury in question, or any injury, for that matter; and that this condition was a congenital defect; that plaintiff's sacrum was abnormal in size and position — that is, it was thinner and did not extend up (by one and one-half inches) as it usually does in the normal man; that the fifth lumbar vertebra extended down into the space normally occupied by the sacrum, and that this condition had been there probably since birth. Said evidence further showed there was no evidence of fracture, dislocation or arthritis in plaintiff's hip joints, sacrum, coccyx, fifth, fourth, third, second and first vertebra; that X-rays showed a rather marked separation between the upper and lower segments of the coccyx, and that this condition might be due to injury or be a congenital defect.
"The said evidence further showed that plaintiff, before the accident, had good health, and that after the accident plaintiff had a fracture of the left ankle bone, known as the astragalus, and that this fracture was the result of injury. The evidence further showed that plaintiff, immediately after the accident, was suffering from a swollen, tender back, a bruise of about three inches in diameter over the lower part of the sacrum, and laceration about two inches long over the right buttock, a swollen and sprained left ankle and a swollen or tender heel; that the doctors immobilized plaintiff's back, first with adhesive tape and then later on, on January 25, 1926, with a steel brace, which plaintiff has worn constantly since and was wearing at the time of trial; and that the sprained or strained condition of plaintiff's spine was permanent and could come from a fall such as plaintiff had; that the condition of plaintiff's spine limits the lateral and backward movements of his back; and that the said brace which plaintiff was wearing relieves the strain; that a man having kyphosis may never suffer pain until he undergoes some sprain, but that such a man is more susceptible to injury to the spine than a normal man, and that, excepting the history of this case of no prior pain from kyphosis and constant pain in plaintiff's spine since the accident, it was the opinion of Dr. Smith that the pain in said spine was due to the injury.
"The evidence further showed plaintiff was a man thirty-six years old, and earning $37.40 per week at his occupation, and had incurred medical bills of $275, which was limited by plaintiff's instruction on the measure of damages to $250 at the time of trial."
Thus it appears that respondent, with a hump-back, was without pain and able to hump around as a boiler-maker's helper to the tune of $37.40 per week before he fell from the stack. It further appears that since falling he cannot perform manual labor and will never be able to do so. He is compelled to wear a brace around both his back and ankle and has suffered and will continue to suffer severe pain. At the time of trial he had lost wages amounting to $3,000. The evidence tends to show he is a helpless cripple and will so continue during his lifetime. We think the evidence sustains the verdict.
The judgment should be affirmed. It is so ordered. All concur.