Stutzke v. Consumers Ice & Fuel Co.

CAULFIELD, J. (after stating the facts).—I. Defendant complains of the instruction given by the trial court on the measure of damages. It contends that said instruction is erroneous because it allows recovery for past loss of earnings beyond the amount specified in the petition. This criticism is based upon the fact that in his petition the plaintiff in stating his damages alleged that as a result of his injury he had suffered loss of wages in the sum of fifteen dollars per week since the date of his injury, while the instruction ^permitted the jury to compensate him for any; loss of wages which they might believe from the evidence he had suffered as a result of his injury. The defendant cites in support of its contention, Smoot v. Kansas City, 194 Mo. 513, 92 S. W. 363; Radtke v. Basket Co., 229 Mo. 1,129 S. W. 508, which in effect hold it to be error to so instruct the jury as to permit them to award recovery on account of a certain element of damage greater than — 9 — is claimed or shown by the plaintiff in his petition or evidence to have been the amount of his loss in that particular; that is to say, if the plaintiff sees fit to itemize his damages, the jury should be required to confine the award of recovery within the amount specified for the particular element of damage relied upon. In order for an instruction to err in this respect, however, it must appear that its broad language complained of applies to the very thing as to which plaintiff has limited his claim; the instruction must make general that which the plaintiff has made limited. Thus, it has been held by our supreme court that though a petition purports to state the amount which plaintiff has suffered through loss of time, speaking in the past tense, such statement or limitation is to be taken only as applying to the date of the filing of the petition, and if there are other allegations in the petition and proof made thereunder requiring an allowance of damages for loss of time after the time of filing the petition, it is not error for the instruction to permit an award of damages for loss of time over and beyond the amount specified. [Lindsay v. Kansas City, 195 Mo. 166, 93 S. W. 273.] This is manifestly proper. When the petition speaks in the past teuse it necessarily speaks of the period up to the time of its filing, while when the instruction speaks in the past tense it speaks of the larger period up to the time of its being given. The instruction is speaking of a different period than did the petition. It is not allowing recovery for the same loss of time referred to by the petition ' but for a larger loss. It would be manifestly unfair to limit plaintiff’s recovery for a larger loss to an amount specified by him for a smaller loss, if his petition alleges and his proof shows such larger loss. That our supreme court recognizes this and does not disapprove of its ruling made in the Lindsay case is made manifest in the Radtke case by the distinction there drawn between the facts of that case and the facts of the Lindsay case, and by the — 10 — quotation with approval, in the Radtke case, of language used by this court in making a like distinction in the case of Heinz v. Rys. Co., 122 S. W. 346, 347, 143 Mo. App. 38, which in part is as follows: “The decisions of Tandy v. Transit Co., 178 Mo. 240, 77 S. W. 994, and Lindsay v. K. C. 195 Mo. 166, 93 S. W. 273, relied on by plaintiff, are not in point. In those cases there was testimony tending to prove that injured' party would sustain loss of time in the future—that is, after the filing of the petition and even after trial-—and for this reason it was held instructions on the measure of damages which did not limit recovery to the loss of time alleged in the petition, were not erroneous since that allegation covered only time lost up- to the day the petition was filed. But in the present case, whatever time plaintiff lost and whatever expense he was put to for treatment by a physician had all been lost and incurred prior to the filing of the suit. He testified he had lost two weeks’ time from work as alleged in the petition and had incurred a doctor’s bill of fifty dollars.- There was no chance then for other damages to accrue on account of those items continuing to entail damage after’ the case had been begun.” In the case at bar, like in the Lindsay case, the averments placing plaintiff’s loss at fifteen dollars per week applied only up to the time when the petition was filed. There were, however, additional averments which we deem sufficient to cover loss of wages after the time of filing the petition up- to the time of trial. There was also testimony tending to prove loss of wages after the time of filing the petition and up to the time of the trial, a period of about nine months. This case is then to be distinguished from the cases relied upon by defendant, and similar cases, and is to be governed by the Lindsay Case. The instruction was not erroneous and the action of the trial court in giving it is approved. — 11 — II. The defendant contends that the court should have sustained its demurrer to the evidence and that the petition does not state a cause of action. It was the duty of the defendant to exercise ordinary care to furnish its servant with a reasonably gentle and safe animal suitable for the performance of the service required. [McCready v. Stepp, 104 Mo. App. 340, 78 S. W. 671.] And it was negligence for the defendant knowingly to furnish to the plaintiff for use in the course of his employment a mule which was-dangerous and vicious, at least if plaintiff was ignorant of that fact and the defendant failed to inform him. [McCready v. Stepp, 104, Mo. App. 340, 78 S. W. 671; Leigh v. Omaha Street Ry. Co., 36 Neb. 131; McGarry v. New York & H. R. Co. 18 N. Y. Supp. 195.] And the liability of the defendant in the respect mentioned is not affected by the doctrine that the servant, when he enters his master’s employ, impliedly agrees with him to assume the risk . of usual dangers incident to the work. Plaintiff did not assume the risk of being injured through the defendant’s negligence in knowingly, and without warning, furnishing a dangerous mule, he being ignorant of its character. It may be,, as defendant argues, that mules as a class are dangerous, or “apt” to kick, but the evidence here discloses that there are gentle mules, not addicted to kicking, and if so it was the duty of- defendant to exercise ordinary care to furnish that kind for plaintiff’s use. At least, defendant should have exercised ordinary care to furnish one not more dangerous than the usual run of mules. The mule furnished to the plaintiff is shown by the evidence to have been extraordinary dangerous; a thoroughly wicked mule. We are not impressed with the argument that plaintiff’s own testimony disclosed that the mule was so obviously dangerous that a man of ordinary prudence would not use it or work around it. Plaintiff’s testimony in that respect really amounted to nothing more than an opinion on the gen — 12 — eral character of mules and even that was contradictory and confused and does not fairly represent the trend of plaintiff’s testimony. That and the testimony of plaintiff’s other witnesses tended to prove that there are gentle mules, in fact that mules as a class are not dangerous and that this particular mule was much more dangerous than his class. In this case the question of whether the danger was so obvious as to preclude plaintiff’s recovery was for the jury. It is the same with the question whether the plaintiff exercised ordinary care in hanging up the harness at a place where the mule could reach him. The evidence tends to prove that the plaintiff performed that duty in the usual way, unharnessing the mule in the stall and placing the harness upon the peg provided by his master. We are not impressed that he was negligent in permitting his eye and thought to wander for a moment to his work of hanging up the collar. It is probable that if his master had not neglected to warn him that the mule he was working* by' was a lurking devil, he would have kept the vigilant AVatch which defendant now insists he should have kept. Not having been warned or otherwise made cognizant of the mule’s propensity, he had a right to assume that his master had furnished him with a reasonably safe animal and upon that assumption his action was perfectly natural and proper. The petition aptly alleges the relation of master and servant between the defendant and plaintiff, a negligent breach of duty by the master in the manner we have indicated and plaintiff’s injury as the direct result thereof. The proof fully sustains the allegations of the petition. The criticism aimed at the petition is unwarranted and the demurrer to the evidence was properly everruled. III. By the instructions it was made incumbent upon the plaintiff to prove that the mule was a dangerous and vicious animal and that that fact was known to the defendant and was not known to the plaintiff — 13 — and bad not been communicated to the plaintiff, and that at the time plaintiff was injured be was exercising ordinary care for bis own safety. On behalf of defendant the court gave an instruction on the assumption of risk, denying plaintiff’s right to recover if the kick received by the plaintiff was one of the risks naturally incident to bis work. It also gave an instruction denying plaintiff’s right to recover if the mule’s vicious propensity was known to the plaintiff or might have been known to him by the exercise of reasonable care. These instructions were at least as fair to the defendant as it bad any right to receive or expect •. The defendant has assigned errors other than those we have mentioned but we do not care to prolong this opinion by a recital or discussion of them. Suffice to say we have carefully considered them and find them without sufficient merit or prejudicial effect to justify reversing the judgment on a count of them. The case was well and fairly tried and we deem the judgment to be for the right party. Tbe judgment is affirmed. Reynolds, P. J.} and Nortonij J., concur.