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(273 S.W.) ZEIN v. PICKEL STONE Co. (No. 18758.) 1 7. Evidence Om493—Effect of absence of guard

from chain block held proper subject for opin. (St. Louis Court of Appeals. Missouri. May ion evidence. 5, 1925. Rehearing Denied June 24, 1925.) Where injury was caused by slipping of

chain on chain block, effect of absence of guard 1. Trial em 127—Plaintiff's testimony that doc- thereon held proper subject for opinion evitors examining him were sent by insurance dence of witness who had special knowledge and company held not to require mistrial.

experience; chain block being not such a simIn personal injury action, plaintiff's testi- ple contrivance that jurors were as competent mony that certain doctors who examined him to judge effect of absence of guard as experi

enced witness. were sent by insurance company held not to require mistrial, in view of fact that doctors 8. Damages Om 132(8)—$5,000 not excessive testified at trial, and their relation with insur for injuries to employé's hand. ance company was material as affecting their

Where employé, earning 75 cents an hour, credibility.

had lost $1,000 in earnings at time of trial as

result of injury to hand by falling pump, re2. Master and servant om264(12)-Proof of quiring operation, so that hand was in splint

absence of guard on chain block held to ren- for eight weeks, and treated by physicians for der it defective within allegations of petition. seven months, could not be greatly flexed or

In action by employé for injuries to hand, extended at time of trial, two years later, and caused by fall of pump through slipping of might never regain its strength, verdict of $5,chain block, proof that guard was missing from 000 held not excessive. chain block held within specific negligence charge that chain block was defective, and, in 9. Appeal and error Om 1045(1) -Refusal to

discharge jury, because juror, except for hona sense at least, that it was broken.

est mistake in saying he did not know a wit. 3. Master and servant mw 125(6)-Employer

ness, might have been challenged, held not charged with knowledge of absence of guard from chain block.

Where juror on voir dire failed to disclose

acquaintance with a witness, through honest In action by employé for injury to hand mistake, but subsequently testified that he knew from falling of pump caused by slipping of witness slightly, and recognized him only after chain block, due to absence of chain guard he came into court, but would not be prejudiced which had been missing for at least a month, al- in any way thereby, refusal of court to disthough chain block had not been used in mean charge jury merely because defendant's countime, employer held to have duty to have known sel stated that he would have peremptorily of defect.

challenged juror if acquaintance had been dis4. Master and servant am 289(19)-Injured closed as witness was the plaintiff's chief witemployé not held negligent as matter of law.

ness as to damages, held not error, in absence

of any showing of substantial prejudice. Employé, wiping sand from bearings underneath slowly descending pump, injured by slip Appeal from St. Louis Circuit Court; ping chain block as result of missing chain Charles B. Davis, Judge. guard, of which he was not aware, held not con

"Not to be officially published.” tributorily negligent as matter of law.

Action by Fred Zein against the Pickel 5. Master and servant 291(4)- Instruction Stone Company. Judgment for plaintiff, and

that jury find chain "slipped” held not error defendant appeals. Aflirmed.
under evidence.

A. & J. F. Lee and Joseph Renard, all of
In action by employé for injury caused St. Louis, for appellant.
while wiping sand from bearings beneath pump

W. H. Douglass, of St. Louis, for respondwhile it was being lowered into pit, instruction

ent.
requiring finding as predicate for recovery that
chain on chain block slipped and caused pump
to fall, held proper as against claim that evi-

SUTTON, C. This is an action for persondence showed chain doubled or jumped; evidence al injuries sustained by plaintiff while engagbeing that absence of chain guard permitted ed in work as an employé of defendant at its chain to slip out of position and double or buc- plant in the city of St. Louis. The cause was kle, which action was within meaning of term tried to a jury. There was a verdict for plain"slipped" as used in instructions.

tiff in the sum of $7,500. The court overruled 6. Evidence @ww 474(11)-Employé working on dition that plaintiff enter a remittitur of $2.

defendant's motion for a new trial upon conchain block held qualified to give opinion as to effect of absence of chain guard.

500. Thereupon such remittitur was entered, Where injury was caused by slipping of 000. The defendant appeals.

and judgment was accordingly given for $5,chain on chain block, employé, who had worked with chain blocks for a year and a half, and on

The petition alleges that plaintiff was in cross-examination showed thorough familiarity the employ of defendant, and was engaged in with such instruments and one in question, held lowering into a pit a pump which had been qualified to give opinion as to effect of absence repaired; that in thus lowering the pump a of guard from chain block.

chain block was used; that the chain block

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had been broken, and was defective, and , 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 The evidence tends to show that the de- guard designed to hold the chain in position fendant maintained and operated in its plant while objects are being lowered 'was off the a number of saws used in sawing stones; chain block; that, when the guard was off that the stones were placed upon a plat- the chain block, the chain would thereby be form, , and the saws were placed on the caused to slip out of its position so as to stones at various distances from each cause the object being lowered to suddenly other so as to cut the stones the desired drop; that, when plaintiff was injured, he lengths or widths; that in order to cut the and Zinn were lowering the pump into the stones it was necessary to use water and pit; that plaintiff was in the pit guiding the sand, which was pumped by a sand pump to pump as it was being lowered; that it was the sans from a pit about five feet square | being lowered very slowly so that the moveand about five to six feet deep; that the ment was hardly perceptible; that sand got sand pump rested upon a shaft in the pit; on the bearings, and plaintiff undertook to that plaintiff and one Zinn, on the morning wipe the sand off the bearings, and the pump of the accident in which plaintiff was in- suddenly dropped on his hand and caused the jured, were instructed by the engineer in injury for which he sues; that the drop was charge of the work to rebabbit the bearings caused by reason of the absence of the guard on this shaft; that in order to do this work from the chain block; that the guard had it was necessary to hoist the pump out of been off the chain block for at least a month ; the pit; that a chain block was used to lift that neither the plaintiff nor Zinn discovered the pump out of the pit; that plaintiff and the absence of the guard from the chain block Zinn were told by the engineer to get a prior to the accident; that the chain block chain block for this purpose, and that they was swung about three feet above the operagot the same chain block they had used sev- tor's head; that, when the plaintiff started to eral times before when doing the same work; wipe the sand from the bearings on the shaft that this was the only chain block used in in the pit, the pump was about eight inches that department; that there were other above its proper position on the bearings; chain blocks in the plant, but they were used thật plaintiff performed this work of wiping in other departments; that, when plaintiff the sand from the bearings in the same manand Zinn got the chain block, they hung it ner he had customarily done it under the into a rope which had theretofore been plac- immediate supervision of the engineer. ed in position above the pit for that purpose;

(1) In the examination of plaintiff as a that the rope was tied around a beam in the witness in his own behalf by his counsel the form of a loop that hung down about eighteen following occurred: inches so as to receive the book of the chain "Q. Did any other doctors besides Dr. Van block; that this rope had been in this posi- Raalte and Dr. Neidringhaus examine you? A. tion for some time, and was placed there to Yes, sir; two company doctors, Dr. Mayes and be used for this work, and had been previous- Dr. Brooks. ly so used; that the chain block is so con

"Q. Did any other doctor examine you? A. structed that it works with an endless chain Yes; Dr. Todd. used to lift and lower objects; that there and Dr. Brooks for an examination? A. The

"Q. Do you know who sent you to Dr. Mayes are two small chains that the operator pulls company; the insurance company sent me.” with his hand in operating the block; that, when the operator pulls one of these chains,

Defendant moved to discharge the jury on it raises the object being handled, and when account of the reference made by plaintiff to he pulls the other it lowers the object; that the insurance company. The court instructthe construction of the chain block is such ed the jury to "disregard the answer, pay no that it is impossible to work it rapidly; that attention to it, and be influenced by it in no in raising or lowering objects the movement manner whatsoever," and overruled the mois so slow that it is barely perceptible; that tion to discharge the jury. Defendant assigns the movement cannot be hastened or retard- here this ruling of the court as reversible ed, but is uniform at all times; that the error. It turned out in the progress of the chain which lifts and lowers the objects runs trial that both Dr. Mayes and Dr. Brooks on a sprocket wheel; that there are depres- were produced and testified as witnesses on

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(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 phy [5] Complaint is made of plaintiff's insicians became witnesses on behalf of the destruction No. 1 on the ground that it is fendant their relationship to the insurance broader than the proofs, in that it requires company became a material matter to go to the jury to find as a predicate for a verdict the jury as affecting their credibility as wit. | in favor of plaintiff that, while the pump nesses and the weight to be given to their was being lowered into the pit, the chain on testimony. There was no prejudicial error the chain block "slipped” and caused the in the refusal of the court to discharge the pump to drop or fall on plaintiff's hand and jury. Snyder v. Wagner Electric Mfg. Co., injure it, whereas defendant says that there 284 Mo, 285, loc. cit. 310, 223 S. W. 911. was no evidence to show that the chain “slip

[2] The defendant contends that the evi- ped,” but that, on the contrary, the evidence dence does not justify the submission of the shows that the chain "doubled" or "jumped," case to the jury, for the reason that the and thus caused the pump to suddenly drop plaintiff failed to prove the specific negli- | on the plaintiff's hand. The precise behavior gence charged in the petition, to wit, that of the chain does not very satisfactorily apthe chain block had been broken and was pear from the record. This arises from the defective. It is urged that the evidence does fact that the chain block was exhibited and not show that the chain block was broken or demonstrated before the jury, and the witdefective, but shows merely a failure to nesses in testifying concerning it made themguard the chain block, and that there is a selves intelligible to the jury largely by gesvast difference between negligence in main- tures and manipulations of the chain block taining or furnishing a broken and defective not reproduced in the record. As we underchain block and negligence in failing to guard stand the evidence, however, it tends to show the chain block. The merits of the cause that the absence of the chain guard permitought not to be permitted to ride off on such ted the chain to slip out of position and doua technical refinement. The chain guard was ble or buckle, and that, as the sprocket wheel a constituent part of the chain block. The rolled over, the chain in the process of unguard was missing from the chain block. In buckling slipped or jumped back into posia sense, at least, the chain block was broken. tion, and thus caused the pump to suddenly Certainly it was defective.

drop. There can be no doubt that this ac[3] It is further urged in this connection tion of the chain is within the meaning of that there was no proof that the defendant | the term "slipped,” as used in the instrucknew, or by the exercise of ordinary care tion. could have known, of the defective condition [6, 7] The defendant complains that the of the chain block before the accident in time court erred in allowing plaintiff's witness, to have remedied the defect. The evidence Ben Zinn, to give his opinion that, if the shows that within a few hours after the acci- guard had been on the chain block, the suddent the chain block was taken down and den drop or fall of the pump which was being examined, and that it was then discovered lowered could not have occurred. The dethat the chain guard was missing; that fendant assigns error upon the admission of shortly thereafter the guard was found at a this opinion evidence on the grounds: (1) place where the chain block had been used That the witness was not shown by the evi. a month or two before the accident, and it dence to be qualified to give an opinion as was thereupon replaced on the chain block. to the effect of the absence of the guard from This evidence tends strongly to show that the the chain block; and (2) that the effect of guard was off the chain block for at least the absence of the guard was not a proper a month before the accident. If the defend- subject for opinion evidence. The witness ant did not know of this condition of the testified that he was familiar with the prin-. chain block before the accident in time to ciple upon which the chain block worked, and have remedied the defect, in the exercise of that he had worked with this chain block ordinary care it ought to have known it. 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- I like it, qualified him to give an opinion as to

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the effect of the absence of the guard from, and this disability persisted at the time of the chain block. We think, too, that under the trial. He had suffered a loss of as much the evidence the chain block cannot be re as $1,000 in earnings at the time of the trial, garded as such a simple contrivance that the and his earning capacity was permanently jurors were as competent to judge of the impaired. We do not regard the judgment effect of the absence of the guard as the wit- as excessive. ness, who had special knowledge, familiarity, [9] After the jury had been impaneled and and experience concerning it, and we con sworn to try the cause, and plaintiff in the clude that this was a proper matter for opin- progress of the trial had been examined as son evidence. The defendant's counsel in a witness, the defendant's counsel made the the progress of the trial seems to have ar- following announcement to the court: rived at the same conclusion, for, when he

"During the last ten-minute recess Edmund came to the examination of the witnesses E. Osteryoung, one of the jurors now serving on behalf of defendant, he freely took their on the panel in this case, came to me and said opinions that the absence of the guard from in substance: 'Mr. Green, I think I ought to the chain block could not have caused the tell you that when you asked me yesterday if I sudden drop of the pump.

was acquainted with Dr. Todd that I said, [8] The defendant insists that, notwith- "No," that I didn't know him, but that I was standing the remittitur entered by plaintiff in the courtroom this morning I immediately

mistaken in that answer. When Dr. Todd came as required by the court, the judgment is still recognized him, and knew that I was personally excessive, Plaintiff suffered a serious and ex- acquainted with him, and had served on the Y. ceedingly painful injury. It was necessary M. C. A. board with him.' I want to make this for him to undergo an operation. He was un- further statement that, though I am satisfied der the treatment of physicians for seven that the juror made an honest mistake, yet if months. His hand was in'a splint for eight he had told me on voir dire examination that he weeks. He suffered pain with his hand dur- knew. Dr. Todd I would have challenged him; ing that time. He suffered very severe pain that is, I would have taken him off on one of for about two weeks, and could not sleep. that one of the main issues in this case is the

my three challenges, the reason for that being The pain was so severe that he would have nature and extent of plaintiff's injuries, and Dr. to get up in the night and walk the floor. Todd is the main witness for the plaintiff with The third metacarpal bone was broken. Five reference to the extent of his injuries, and for months after the injury, when examined by that reason I think the jury ought to be disDr. Todd, the hand showed a large stellate charged, and I ask the court to discharge the scar on the back. The scar dipped deeply jury.” into the soft parts below and banded them

Thereupon the juror, being examined contogether in a mass, and a little anterior and

cerning the incident, testified: almost opposite the scar on the back of the hand was a deep adherent scar on the pal

"On my examination yesterday I stated I did

not know Dr. Todd. mar surface of the hand. At that time the thought to be the truth. I first discovered that

I stated then what I hand could neither be flexed nor extended to I did know Dr. Todd when I saw him come in any great extent because of adhesions both the courtroom this morning. I just recog. in the back of the hand and the palm. A nized his face. I don't think Dr. Todd 'knows few days before the trial, which occurred I know Dr. Todd through the Y. M. C. two years after the injury, when the hand A. I was on several committees, and Dr. Todd, was again examined by Dr. Todd, the ad- I think, was chairman of a good many commithesions on the back of the hand had practi- would not in any wise influence me in my ver

tees. The fact that I met him in that way cally disappeared, and the scar had stretch- dict in this case one way or the other. I ed out so that there was not so much dis- would not be prejudiced in any way by reason tortion of the hand as there was on his pre- of the fact that I know him either for or vious examination. The adhesions did not against any party. I just happened to know cover as wide an area, and there was more him when I saw him. I have no acquaintance motion in the hand, but the motion was lim. with him except just the mere fact that I know ited, due to deep adhesions of the palmar ability I don't know anything about it.

him when I see him. As to his professional

I scar tissue going down and including the would not be inclined to accept his testimony tendons that flex the fingers. The fingers

any more than that of any other doctor." were stiff, and the flexion of the hand was incomplete. The hand could not be closed Thereupon the court overruled defendant's completely The fingers could be brought motion to discharge the jury. Defendant asonly to within an inch of the palm. It was signs here reversible error upon this ruling the opinion of Dr. Todd that the hand would of the court. We do not find this precise never fully regain its strength or complete question decided by any of the cases in this its flexion. At the time of his injury plain- state or elsewhere. That Mr. Osteryoung tiff was earning 75 cents per hour, and was was qualified in every respect to serve as a working nine hours per day. The work he juror is conceded. It is only urged that the was engaged in was stone sawing. After his defendant was deprived of its right to perinjury he was unable to engage in this work, emptorily challenge the juror by reason of

me.

ty;

(273 S.W.) his failure to disclose upon his voir dire ex- parties has taken place, which is essential to amination his acquaintance with Dr. Todd. constitute a trial. That the failure of the juror to disclose his [Ed. Note.-For other definitions, see Words acquaintance with the witness was an honest and Phrases, First and Second Series, Trial.] mistake is conceded. It appears that the juror's acquaintance with the witness was

On Motion for Rehearing. of a most casual nature. That defendant 2. Dismissal and nonsuit om 14-Plaintiff may did not obtain information of this acquaint take voluntary nonsuit without court's perance upon the voir dire examination of the mission. juror was not the fault of the plaintiff, nor Plaintiff, as matter of right, can take a vol. the court, nor the juror. It was purely an untary nonsuit, even without permission by accident. The defendant exercised three per- court. emptory challenges. No facts are disclosed 3. Appeal and error Om 113(4)–Order setting concerning the jurors challenged that might aside nonsuit not appealable, as no final judghave actuated the defendant in making these ment has been entered. challenges. For some reason they were un In view of Rev. St. 1919, § 1410, permitting acceptable to defendant.

It may be, for plaintiff to take nonsuit at any time before ought the record shows, that they, too, were same is finally submitted and not afterwards, acquainted with Dr. Todd, or that they were

an order entering voluntary nonsuit is not a acquainted with some other important wit- final judgment, and no appeal lies from order ness for plaintiff, or with the plaintiff him- setting such nonsuit aside. self. In this state of the record we are unwilling to convict the trial court of error for

Appeal from Circuit Court, Nodaway Coun

John M. Dawson, Judge. declining to discharge the jury. To justify this something more should appear than that

Action by Shanks Bros., a partnership the defendant was accidentally deprived of composed of John Shanks and Charley a capricious or whimsical challenge. It Shanks, against the Chicago Great Western should at least appear that defendant was Railroad Company, in which a voluntary nonsubstantially prejudiced by the casualty, and suit was entered. From an action of the this should appear from a disclosure of the court in sustaining plaintiffs' motion to set facts and not from the expression by coun- aside a nonsuit, defendant appeals. Dissel of a mere conclusion. Hegney v. Head, missed. 126 Mo. 619, 29 S. W. 587; State v. Hays, 23

7

for appellant. Mo. App. 257; Vojta v. Pelikan, 15 Mo, App.

McCaffrey & Cook, of Maryville, for re471.

spondents. The Commissioner recommends that the judgment of the circuit court be affirmed.

BLAND, J. This is a suit for damages al

leged to have been sustained by plaintiff as PER CURIAM. The foregoing opinion of the result of negligent delay in the transporSUTTON, C., is adopted as the opinion of tation of a carload of cattle from Ravenwood, the court.

Mo., to the stockyards at St. Joseph, Mo. The judgment of the circuit court is accord- The petition prays for $91.37, alleged to have ingly affirmed.

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: De JJ., concur.

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' testi

mony was not sufficient to take the case to SHANKS BROS. CHICAGO

GREAT | the jury."

The record then recites, "WhereWESTERN R. CO. (No. 15117.)

upon plaintiff took an involuntary nonsuit

with leave to move to set the same aside." (Kansas City Court of Appeals. Missouri. May 4, 1925. Rehearing Denied

A motion to set the nonsuit aside was filed June 15, 1925.)

by plaintiff and sustained by the court. De

fendant has appealed. 1. Appeal and error 1134)-Order setting [1] Defendant alleges that the court erred aside voluntary nonsuit held not appealable; in setting aside the nonsuit, because it was a "trial."

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, voluntary one. Greene County Bank v. Gray, and definition of "trial” in section 1397, held,

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. 463,

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