(273 S.W.) ZEIN v. PICKEL STONE CO. (No. 18758.) | 7. Evidence 493-Effect of absence of guard from chain block held proper subject for opinion evidence. (St. Louis Court of Appeals. Missouri. May 5, 1925. Rehearing Denied June 24, 1925.) Where injury was caused by slipping of chain on chain block, effect of absence of guard thereon held proper subject for opinion evidence of witness who had special knowledge and experience; chain block being not such a sim 1. Trial 127-Plaintiff's testimony that doctors examining him were sent by insurance company held not to require mistrial. In personal injury action, plaintiff's testi-ple contrivance that jurors were as competent to judge effect of absence of guard as experienced witness. mony that certain doctors who examined him were sent by insurance company held not to require mistrial, in view of fact that doctors testified at trial, and their relation with insurance company was material as affecting their credibility. 2. Master and servant 264 (12)-Proof of absence of guard on chain block held to render it defective within allegations of petition. In action by employé for injuries to hand, caused by fall of pump through slipping of chain block, proof that guard was missing from chain block held within specific negligence charge that chain block was defective, and, in a sense at least, that it was broken. 3. Master and servant 125 (6)-Employer charged with knowledge of absence of guard from chain block. In action by employé for injury to hand from falling of pump caused by slipping of chain block, due to absence of chain guard which had been missing for at least a month, although chain block had not been used in meantime, employer held to have duty to have known of defect. 4. Master and servant 289 (19)-Injured employé not held negligent as matter of law. Employé, wiping sand from bearings underneath slowly descending pump, injured by slipping chain block as result of missing chain guard, of which he was not aware, held not contributorily negligent as matter of law. 5. Master and servant 291 (4)-Instruction that jury find chain "slipped" held not error under evidence. In action by employé for injury caused while wiping sand from bearings beneath pump while it was being lowered into pit, instruction requiring finding as predicate for recovery that chain on chain block slipped and caused pump to fall, held proper as against claim that evidence showed chain doubled or jumped; evidence being that absence of chain guard permitted chain to slip out of position and double or buckle, which action was within meaning of term "slipped" as used in instructions. 6. Evidence 474(11)-Employé working on chain block held qualified to give opinion as to effect of absence of chain guard. Where injury was caused by slipping of chain on chain block, employé, who had worked with chain blocks for a year and a half, and on cross-examination showed thorough familiarity with such instruments and one in question, held qualified to give opinion as to effect of absence of guard from chain block. 8. Damages 132(8)—$5,000 not excessive for injuries to employé's hand. Where employé, earning 75 cents an hour, had lost $1,000 in earnings at time of trial as result of injury to hand by falling pump, requiring operation, so that hand was in splint for eight weeks, and treated by physicians for seven months, could not be greatly flexed or extended at time of trial, two years later, and might never regain its strength, verdict of $5,000 held not excessive. 9. Appeal and error 1045(1)—Refusal to discharge jury, because juror, except for honest mistake in saying he did not know a witness, might have been challenged, held not error. Where juror on voir dire failed to disclose acquaintance with a witness, through honest mistake, but subsequently testified that he knew witness slightly, and recognized him only after he came into court, but would not be prejudiced in any way thereby, refusal of court to discharge jury merely because defendant's counsel stated that he would have peremptorily challenged juror if acquaintance had been disclosed as witness was the plaintiff's chief witness as to damages, held not error, in absence of any showing of substantial prejudice. Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.. "Not to be officially published." Action by Fred Zein against the Pickel Stone Company. Judgment for plaintiff, and defendant appeals. Affirmed. A. & J. F. Lee and Joseph Renard, all of St. Louis, for appellant. W. H. Douglass, of St. Louis, for respondent. SUTTON, C. This is an action for personal injuries sustained by plaintiff while engaged in work as an employé of defendant at its plant in the city of St. Louis. The cause was tried to a jury. There was a verdict for plaintiff in the sum of $7,500. The court overruled defendant's motion for a new trial upon con dition that plaintiff enter a remittitur of $2,500. Thereupon such remittitur was entered, and judgment was accordingly given for $5,000. The defendant appeals. The petition alleges that plaintiff was in the employ of defendant, and was engaged in lowering into a pit a pump which had been repaired; that in thus lowering the pump a chain block was used; that the chain block For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes had been broken, and was defective, and I sions or sockets in the rim of the sprocket that said defect was known to defendant, or wheel to receive the links of the chain; that might have been known to it by the exercise guards are fastened over the sprocket wheel of ordinary care; that the defendant neg- so as to hold the links of the chain in their ligently failed to repair the chain block; proper places in the sockets; that a guard that, while thus using the defective chain is fastened on each side of the chain block, block, and acting under the orders of de- the one designed to keep the chain in posifendant and in the scope of plaintiff's em- tion and prevent it from slipping when obployment, and because of said defect, the jects are being raised and the other to keep chain slipped, and the pump fell on plaintiff's the chain in position and prevent it from right hand and injured it. The answer is a slipping when objects are being lowered; general denial, that, at the time plaintiff was injured, the guard designed to hold the chain in position while objects are being lowered was off the chain block; that, when the guard was off the chain block, the chain would thereby be caused to slip out of its position so as to cause the object being lowered to suddenly drop; that, when plaintiff was injured, he and Zinn were lowering the pump into the pit; that plaintiff was in the pit guiding the pump as it was being lowered; that it was being lowered very slowly so that the movement was hardly perceptible; that sand got on the bearings, and plaintiff undertook to wipe the sand off the bearings, and the pump suddenly dropped on his hand and caused the injury for which he sues; that the drop was caused by reason of the absence of the guard from the chain block; that the guard had been off the chain block for at least a month; that neither the plaintiff nor Zinn discovered the absence of the guard from the chain block prior to the accident; that the chain block was swung about three feet above the operator's head; that, when the plaintiff started to wipe the sand from the bearings on the shaft in the pit, the pump was about eight inches above its proper position on the bearings; that plaintiff performed this work of wiping the sand from the bearings in the same manner he had customarily done it under the immediate supervision of the engineer. The evidence tends to show that the defendant maintained and operated in its plant a number of saws used in sawing stones; that the stones were placed upon a platform, and the saws were placed on the stones at various distances from each other so as to cut the stones the desired lengths or widths; that in order to cut the stones it was necessary to use water and sand, which was pumped by a sand pump to the saws from a pit about five feet square and about five to six feet deep; that the sand pump rested upon a shaft in the pit; that plaintiff and one Zinn, on the morning of the accident in which plaintiff was injured, were instructed by the engineer in charge of the work to rebabbit the bearings on this shaft; that in order to do this work it was necessary to hoist the pump out of the pit; that a chain block was used to lift the pump out of the pit; that plaintiff and Zinn were told by the engineer to get a chain block for this purpose, and that they got the same chain block they had used several times before when doing the same work; that this was the only chain block used in that department; that there were other chain blocks in the plant, but they were used in other departments; that, when plaintiff and Zinn got the chain block, they hung it into a rope which had theretofore been placed in position above the pit for that purpose; that the rope was tied around a beam in the form of a loop that hung down about eighteen inches so as to receive the hook of the chain block; that this rope had been in this position for some time, and was placed there to be used for this work, and had been previously so used; that the chain block is so constructed that it works with an endless chain used to lift and lower objects; that there are two small chains that the operator pulls with his hand in operating the block; that, when the operator pulls one of these chains, it raises the object being handled, and when he pulls the other it lowers the object; that the construction of the chain block is such that it is impossible to work it rapidly; that in raising or lowering objects the movement is so slow that it is barely perceptible; that the movement cannot be hastened or retarded, but is uniform at all times; that the chain which lifts and lowers the objects runs [1] In the examination of plaintiff as a witness in his own behalf by his counsel the following occurred: "Q. Did any other doctors besides Dr. Van Raalte and Dr. Neidringhaus examine you? A. Yes, sir; two company doctors, Dr. Mayes and Dr. Brooks. "Q. Did any other doctor examine you? A. Yes; Dr. Todd. and Dr. Brooks for an examination? Defendant moved to discharge the jury on account of the reference made by plaintiff to the insurance company. The court instructed the jury to "disregard the answer, pay no attention to it, and be influenced by it in no manner whatsoever," and overruled the motion to discharge the jury. Defendant assigns here this ruling of the court as reversible error. It turned out in the progress of the trial that both Dr. Mayes and Dr. Brooks (273 S. W.) behalf of the defendant. It is not disputed | posed himself to a danger of which he was that an insurance company interested in the not aware and which arose solely from the result of the suit sent the plaintiff to these negligence of the defendant. physicians for examination. When these physicians became witnesses on behalf of the defendant their relationship to the insurance company became a material matter to go to the jury as affecting their credibility as witnesses and the weight to be given to their testimony. There was no prejudicial error in the refusal of the court to discharge the jury. Snyder v. Wagner Electric Mfg. Co., 284 Mo. 285, loc. cit. 310, 223 S. W. 911. [2] The defendant contends that the evidence does not justify the submission of the case to the jury, for the reason that the plaintiff failed to prove the specific negligence charged in the petition, to wit, that the chain block had been broken and was defective. It is urged that the evidence does not show that the chain block was broken or defective, but shows merely a failure to guard the chain block, and that there is a vast difference between negligence in maintaining or furnishing a broken and defective chain block and negligence in failing to guard the chain block. The merits of the cause ought not to be permitted to ride off on such a technical refinement. The chain guard was a constituent part of the chain block. The guard was missing from the chain block. In a sense, at least, the chain block was broken. Certainly it was defective. [3] It is further urged in this connection that there was no proof that the defendant knew, or by the exercise of ordinary care could have known, of the defective condition of the chain block before the accident in time to have remedied the defect. The evidence shows that within a few hours after the accident the chain block was taken down and examined, and that it was then discovered that the chain guard was missing; that shortly thereafter the guard was found at a place where the chain block had been used a month or two before the accident, and it was thereupon replaced on the chain block. This evidence tends strongly to show that the guard was off the chain block for at least a month before the accident. If the defendant did not know of this condition of the chain block before the accident in time to have remedied the defect, in the exercise of ordinary care it ought to have known it. [5] Complaint is made of plaintiff's instruction No. 1 on the ground that it is broader than the proofs, in that it requires the jury to find as a predicate for a verdict in favor of plaintiff that, while the pump was being lowered into the pit, the chain on the chain block "slipped" and caused the pump to drop or fall on plaintiff's hand and injure it, whereas defendant says that there was no evidence to show that the chain "slipped," but that, on the contrary, the evidence shows that the chain "doubled" or "jumped," and thus caused the pump to suddenly drop on the plaintiff's hand. The precise behavior of the chain does not very satisfactorily appear from the record. This arises from the fact that the chain block was exhibited and demonstrated before the jury, and the witnesses in testifying concerning it made themselves intelligible to the jury largely by gestures and manipulations of the chain block not reproduced in the record. As we understand the evidence, however, it tends to show that the absence of the chain guard permitted the chain to slip out of position and double or buckle, and that, as the sprocket wheel rolled over, the chain in the process of unbuckling slipped or jumped back into position, and thus caused the pump to suddenly drop. There can be no doubt that this action of the chain is within the meaning of the term "slipped," as used in the instruction. [6, 7] The defendant complains that the court erred in allowing plaintiff's witness, Ben Zinn, to give his opinion that, if the guard had been on the chain block, the sudden drop or fall of the pump which was being. lowered could not have occurred. The defendant assigns error upon the admission of this opinion evidence on the grounds: (1) That the witness was not shown by the evidence to be qualified to give an opinion as to the effect of the absence of the guard from the chain block; and (2) that the effect of the absence of the guard was not a proper subject for opinion evidence. The witness testified that he was familiar with the principle upon which the chain block worked, and that he had worked with this chain block and other chain blocks like it in defendant's [4] It is further insisted that the evidence plant for a year and a half. After he had shows the plaintiff guilty of contributory neg- given the opinion complained of, he was takligence as a matter of law. There is no mer- en over by defendant's counsel on cross-exit in this insistence. There was no danger amination, and the chain block was therein the performance of the simple task of upon fully explored, and the witness exhibwiping the sand from the bearings under- ited a thorough familiarity with its organneath the slowly descending pump, except ization and functions, and stated in detail such danger as arose from the absence of the facts upon which he based his opinion. the guard from the chain block, and of this We think the witness' familiarity and exdanger the plaintiff was not aware. Certain- perience with the mechanism and operation ly he cannot be chargeable with contributory of the chain block in question, and others negligence as a matter of law for having ex- | like it, qualified him to give an opinion as to the effect of the absence of the guard from the chain block. We think, too, that under the evidence the chain block cannot be regarded as such a simple contrivance that the jurors were as competent to judge of the effect of the absence of the guard as the witness, who had special knowledge, familiarity, and experience concerning it, and we conclude that this was a proper matter for opin1on evidence. The defendant's counsel in the progress of the trial seems to have arrived at the same conclusion, for, when he came to the examination of the witnesses on behalf of defendant, he freely took their opinions that the absence of the guard from the chain block could not have caused the sudden drop of the pump. t [8] The defendant insists that, notwithstanding the remittitur entered by plaintiff as required by the court, the judgment is still excessive. Plaintiff suffered a serious and exceedingly painful injury. It was necessary for him to undergo an operation. He was under the treatment of physicians for seven months. His hand was in a splint for eight weeks. He suffered pain with his hand during that time. He suffered very severe pain for about two weeks, and could not sleep. The pain was so severe that he would have to get up in the night and walk the floor. The third metacarpal bone was broken. Five months after the injury, when examined by Dr. Todd, the hand showed a large stellate scar on the back. The scar dipped deeply into the soft parts below and banded them together in a mass, and a little anterior and almost opposite the scar on the back of the hand was a deep adherent scar on the palmar surface of the hand. At that time the hand could neither be flexed nor extended to any great extent because of adhesions both in the back of the hand and the palm. A few days before the trial, which occurred two years after the injury, when the hand was again examined by Dr. Todd, the adhesions on the back of the hand had practically disappeared, and the scar had stretched out so that there was not so much distortion of the hand as there was on his previous examination. The adhesions did not cover as wide an area, and there was more motion in the hand, but the motion was limited, due to deep adhesions of the palmar scar tissue going down and including the tendons that flex the fingers. The fingers were stiff, and the flexion of the hand was incomplete. The hand could not be closed completely. The fingers could be brought only to within an inch of the palm. It was the opinion of Dr. Todd that the hand would never fully regain its strength or complete its flexion. At the time of his injury plaintiff was earning 75 cents per hour, and was working nine hours per day. The work he was engaged in was stone sawing. After his and this disability persisted at the time of the trial. He had suffered a loss of as much as $1,000 in earnings at the time of the trial, and his earning capacity was permanently impaired. We do not regard the judgment as excessive. [9] After the jury had been impaneled and sworn to try the cause, and plaintiff in the progress of the trial had been examined as a witness, the defendant's counsel made the following announcement to the court: "During the last ten-minute recess Edmund E. Osteryoung, one of the jurors now serving on the panel in this case, came to me and said in substance: 'Mr. Green, I think I ought to tell you that when you asked me yesterday if I was acquainted with Dr. Todd that I said, "No," that I didn't know him, but that I was mistaken in that answer. When Dr. Todd came in the courtroom this morning I immediately recognized him, and knew that I was personally acquainted with him, and had served on the Y. M. C. A. board with him.' I want to make this further statement that, though I am satisfied that the juror made an honest mistake, yet if he had told me on voir dire examination that he knew Dr. Todd I would have challenged him; that is, I would have taken him off on one of that one of the main issues in this case is the my three challenges, the reason for that being nature and extent of plaintiff's injuries, and Dr. Todd is the main witness for the plaintiff with reference to the extent of his injuries, and for that reason I think the jury ought to be discharged, and I ask the court to discharge the jury." Thereupon the juror, being examined concerning the incident, testified: me. A. tees. "On my examination yesterday I stated I did not know Dr. Todd. I stated then what I thought to be the truth. I first discovered that I did know Dr. Todd when I saw him come in the courtroom this morning. I just recognized his face. I don't think Dr. Todd 'knows I know Dr. Todd through the Y. M. C. I was on several committees, and Dr. Todd, I think, was chairman of a good many commitwould not in any wise influence me in my verThe fact that I met him in that way dict in this case one way or the other. would not be prejudiced in any way by reason of the fact that I know him either for or against any party. I just happened to know him when I saw him. I have no acquaintance with him except just the mere fact that I know ability I don't know anything about it. I him when I see him. As to his professional would not be inclined to accept his testimony any more than that of any other doctor." I Thereupon the court overruled defendant's motion to discharge the jury. Defendant assigns here reversible error upon this ruling of the court. We do not find this precise question decided by any of the cases in this state or elsewhere. That Mr. Osteryoung was qualified in every respect to serve as a juror is conceded. It is only urged that the defendant was deprived of its right to per (273 S. W.) parties has taken place, which is essential to constitute a trial. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Trial.] On Motion for Rehearing. take voluntary nonsuit without court's permission. Plaintiff, as matter of right, can take a voluntary nonsuit, even without permission by court. 3. Appeal and error 113(4)-Order setting aside nonsuit not appealable, as no final judgment has been entered. his failure to disclose upon his voir dire examination his acquaintance with Dr. Todd. That the failure of the juror to disclose his acquaintance with the witness was an honest mistake is conceded. It appears that the juror's acquaintance with the witness was of a most casual nature. That defendant 2. Dismissal and nonsuit 14-Plaintiff may did not obtain information of this acquaintance upon the voir dire examination of the juror was not the fault of the plaintiff, nor the court, nor the juror. It was purely an accident. The defendant exercised three peremptory challenges. No facts are disclosed concerning the jurors challenged that might have actuated the defendant in making these challenges. For some reason they were unacceptable to defendant. It may be, for ought the record shows, that they, too, were acquainted with Dr. Todd, or that they were acquainted with some other important witness for plaintiff, or with the plaintiff himself. In this state of the record we are unwilling to convict the trial court of error for declining to discharge the jury. To justify this something more should appear than that the defendant was accidentally deprived of a capricious or whimsical challenge. It should at least appear that defendant was substantially prejudiced by the casualty, and this should appear from a disclosure of the facts and not from the expression by counsel of a mere conclusion. Hegney v. Head, 126 Mo. 619, 29 S. W. 587; State v. Hays, 23 Mo. 287; O'Brien v. Vulcan Iron-Works, 7 Mo. App. 257; Vojta v. Pelikan, 15 Mo, App. 471. The Commissioner recommends that the judgment of the circuit court be affirmed. PER CURIAM. The foregoing opinion of SUTTON, C., is adopted as the opinion of the court. The judgment of the circuit court is accordingly affirmed. In view of Rev. St. 1919, § 1410, permitting plaintiff to take nonsuit at any time before same is finally submitted and not afterwards, an order entering voluntary nonsuit is not a final judgment, and no appeal lies from order setting such nonsuit aside. Appeal from Circuit Court, Nodaway County; John M. Dawson, Judge. Action by Shanks Bros., a partnership composed of John Shanks and Charley Shanks, against the Chicago Great Western Railroad Company, in which a voluntary nonsuit was entered. From an action of the court in sustaining plaintiffs' motion to set aside a nonsuit, defendant appeals. Dismissed. Shinabargar, Blagg & Ellison, of Maryville, for appellant. McCaffrey & Cook, of Maryville, for respondents. BLAND, J. This is a suit for damages alleged to have been sustained by plaintiff as the result of negligent delay in the transportation of a carload of cattle from Ravenwood, Mo., to the stockyards at St. Joseph, Mo. The petition prays for $91.37, alleged to have been lost by reason of decline in the market, extra shrinkage, and feed. At the close of DAUES, P. J., and BECKER and NIPPER, plaintiffs' case the following occurred: DeJJ., concur. SHANKS BROS. V. CHICAGO GREAT (Kansas City Court of Appeals. Missouri. 1. Appeal and error 113(4)-Order setting aside voluntary nonsuit held not appealable; "trial." fendant offered an instruction in the nature of a demurrer to the evidence, and after "it had been considered by the court the court indicated that in his opinion plaintiffs' testimony was not sufficient to take the case to the jury." The record then recites, "Whereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside." A motion to set the nonsuit aside was filed by plaintiff and sustained by the court. Defendant has appealed. [1] Defendant alleges that the court erred in setting aside the nonsuit, because it was a voluntary and not an involuntary one. There In view of Rev. St. 1919, § 1469, giving is no question but that the nonsuit was a right of appeal from order granting new trial, and definition of "trial" in section 1397, held, voluntary one. Greene County Bank v. Gray, McClure v. that defendant cannot appeal from an order 146 Mo. 568, 48 S. W. 447; setting aside a voluntary nonsuit, since in such Campbell, 148 Mo. 96, 49 S. W. 881; Lewis case no judicial examination of issues between v. Center Creek Mining Co., 199 Mo. 4C3, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |