Russell v. Missouri Pacific Railroad

*1306 ATWOOD, J. This is a personal injury case in which the jury returned a forty thousand dollar verdict. A remittitur of twenty-five thousand dollars was entered, and judgment rendered for fifteen thousand dollars, from which judgment defendant has appealed. The petition alleged plaintiff’s cause of action alternatively in two counts. The first count charged defendant with negligence at common law and under the statutes of Missouri governing fellow-servants of railroad employees. The second count charged defendant with negligence under the Federal Employer’s Liability Act. During the trial and before the case was submitted plaintiff dismissed as to the first count, and went to the jury on the second count of the petition. This count charged that plaintiff was an employee of defendant, and was engaged in interstate commerce at the time he was injured; that defendant negligently failed to furnish plaintiff a reasonably safe claw bar with which to do certain work therein alleged to have been required of him; that defendant negligently furnished plaintiff with a claw bar which was defective, dangerous and not reasonably safe for said use; that defendant negligently ordered, directed, required and caused plaintiff to do said work with said defective, dangerous and unsafe claw bar; that defendant and its servant Winstanley, who was holding the car door undergoing repair, let go his hold thereon and negligently caused, suffered and permitted said car door to move while plaintiff was pulling a nail therefrom; and that defendant and its *1307 servant Winstanley negligently failed to hold said door and keep the same from moving while plaintiff was pulling said nail. Plaintiff’s injuries are alleged to have been caused by said nail striking his right eye whereby his right eye ball was cut, lacerated and bruised, and the sight completely destroyed and the eye ball permanently disfigured. It was also alleged that the left'eye thereby became infected and inflamed and the sight permanently weakened and impaired; that because of said injuries he suffered great physical pain and would so suffer in the future, that his nervous system was permanently impaired, that he lost the earnings of his labor of five dollars a day and would lose said earnings in the future, and that his earning capacity has been permanently impaired. Defendant filed a general demurrer to the petition, which was overruled. Defendant thereafter filed answer to said second count, admitting that it is a railroad corporation, and that at all the times mentioned in said petition plaintiff was employed by defendant and engaged in interstate commerce. The answer also pleaded a general denial, the simple tool doctrine and assumption of risk. The reply was a general denial. Plaintiff’s evidence consisted of his own testimony, that of his wife, and that of two eye specialists, one of the latter being employed by the Missouri Pacific Hospital Association, said testimony tending- to support the allegations in the second count of plaintiff’s petition. Defendant introduced no evidence except the testimony of its employee Winstanley who was working with plaintiff at the time he was injured. At the close of plaintiff’s case and again at the close of the whole ease plaintiff interposed a demurrer to the evidence, which was overruled. The evidence will hereafter be more particularly noted in connection with the points urged by appellant. The first assignment of error relates to the admission of testimony, but no alleged error of this character is pointed out or urged in the brief, and we shall treat this assignment as abandoned. Appellant next assigns error in the action of the court overruling defendant’s demurrer to the evidence at the close of plaintiff’s case and again at the close of the whole ease. The particular points urged in this connection are that the P^oof fails to show that the claw bar was not reasonably safe for respondent’s use, or that its alleged defective condition was the proximate cause of respondent’s injury. In pressing this claim counsel for appellant ignore the alleged negligence of plaintiff’s co-employee in letting go his hold upon the door, stating in their reply brief that plaintiff made no effort to prove this allegation of negligence. We’ do not so read the evidence. Plaintiff testified that he was told by Mr. Hoppes, the foreman whose duty it was to oversee the repairing *1308 of ears, to repair a certain car door. The track sloped considerably to the east, and the car laid out for repairs was blocked at the east end by a piece of railroad tie against the wheel. The door to be repaired was on the south side of this car, and stood about one-third or one-half open, hanging on rollers at the top, but “swinging loose at the bottom, on account of the boards being decayed and rotten it would not hold in the guide.” The particular repair undertaken was to place a new board on the bottom of the door, and before this could be done some old 16-penny wire nails had to be drawn from the bottom outer margin or edge of the door a little above plaintiff’s head as he stood on the ground facing the car. On cross-examination plaintiff testified that “the door was swinging free,” and while he was pulling the nails "VVinstanley, his co-employee, was standing at his left near the west or front end of the door “holding the door from moving.” The car standing on the down grade to the east with the door swinging free, such action on the part of the co-employee was apparently a necessary and proper precaution, but plaintiff’s testimony was that just as he was in the act of drawing the last nail Win-stanley let go his hold upon the door, thereby permitting the door to move and causing the nail to fly out quickly through the wide open U-shaped slot of the claw bar, striking him in the "eye. Plaintiff’s evidence tended to prove that the ordinary form of claw bar used in drawing nails was Y-shaped with sharp edges which closed against the body of the nail and regardless of its size gripped the nail while it was being drawn, while the claw bar which defendant furnished plaintiff was so wide, battered and misshapen that it would not grip the body of the nail at all. The trial judge properly refused to declare as a matter of law that defendant was not negligent in furnishing plaintiff with such a claw bar, nor is it difficult to discern a causal connection between the condition of the claw bai', the sudden jerk of the door which plaintiff said resulted from "Winstanley’s letting go his hold thereon, and plaintiff’s injury. It was for the jury, properly instructed, to say whether or not defendant was negligent under the specification laid. Defendant’s demurrer to the evidence was both times properly overruled. Appellant next says that plaintiff assumed the risk. A workman of mature years is taken to have assumed such risks as are normally and necessarily incident to his occupation, but the risk here under cooperation is not of that kind. It is not naturally incident to plaintiff’s occupation as a carpenter, but arises from an alleged failure of the master to provide the servant with a suitable and safe appliance for the work, as it was his duty to do. Under the Federal rule if the employee in such case knows of the defect, or if the defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have *1309 observed and appreciated them, and “he continues in the employment, without objection, or without obtaining from the employer or his representative an assurance that the defect will be remedied, the employee assumes the risk, even though it arise out of the master’s breach of duty. If, however, there be a promise of reparation, then during such time as may be reasonably required for its performance or until the particular time specified for its performance, the employee relying upon the promise does not assume the risk unless at least the danger be so imminent that no ordinarily prudent man under the circumstances would rely upon such promise.” [Seaboard Air Line v. Horton, 233 U. S. 492, l. c. 504.] Plaintiff observed the defect in the claw bar and complained of it to his foreman on the Saturday preceding the Tuesday forenoon, April 17, 1923, when he was injured. The foreman said: “Go ahead and use it; I’ll get you a new one in a few days.” Relying on this promise plaintiff continued to use the' bar. The danger does not appear to have been so imminent that an ordinarily prudent man under the circumstances would not have relied upon such promise, and plaintiff’s case clearly comes within the above noted exception to the doctrine of assumed risk. We find no contrary ruling in the cases cited by appellant, and we hold that plaintiff did not assume the risk. Under head of “Points and Authorities” counsel for appellant say that “the trial court erred in giving Instruction 1 at the instance of respondent. ’ ’ Five cases are cited, presumably as supporting authorities, but the point is thereafter only incidentally referred to in briefing the claim that the verdict was excessive. We have carefully examined this instruction in the light of the cases cited and find no reversible error therein. The only point left for our consideration is that the amount of the original verdict, and the amount of the verdict and judgment of $15,000 as finally entered by the trial court, is excessive. The original verdict $40,000 was excessive, but that fact does not in itself indicate that the jury was actuated by passion or prejudice. [Clifton v. Railroad, 232 Mo. 708.] Was the judgment for $15,000 finally entered by the trial court excessive? Plaintiff was 38 years of age and was earning $5 a day as a carpenter at the time he was injured on April 17, 1923. Plaintiff suffered complete loss of sight in the right eye immediately and for a long period of time he endured intense pain. The left eye became inflamed io such an extent as to impair the vision, though at the trial eight months later one of the doctors testified that no irritation was then present, and in his opinion glasses could be adjusted so plaintiff could get normal vision in this eye, but a sympathetic inflammation might develop at any time, in which event the right eyeball would have to be removed promptly to save the sight of the left eye. About *1310 three months after he was injured plaintiff sought work. His first job was on a truck moving* household furniture, but after four days he had to give it up because he could not see. He next went to work in the mechanical department of the American Car & Foundry Company, but only held the position about five hours because he could not see. He then worked for a carpenter carrying lumber for about three weeks at 40 cents an hour, and then as a carpenter’s helper at 45 cents an hour, but was laid off because he was unable to see. In Adams v. Railroad Co., 287 Mo. 535, we allowed $12,500 for the loss of the left eye of plaintiff who was 18 years old and earning $3.75 a day at the time he was injured. There was no evidence of existing* injury to the other eye, although there was testimony that such might appear in subsequent months or years if the substance which struck the eye was still there. The actual loss and impairment of vision shown in the instant ease was greater than in the Adams case. Measured by the standard there set nearly seven years ago, this judgment of $15,000 is not excessive. Finding no reversible error in the case the judgment is affirmed. All concur, except Gantt, J., not sitting.