Snyder v. Am. Car Foundry Co.

Full title: EDWARD SNYDER v. AMERICAN CAR FOUNDRY COMPANY, Appellant

Court: Supreme Court of Missouri, Division Two

Date published: Mar 2, 1929

322 Mo. 147 (Mo. 1929)

14 S.W.2d 603

Opinion

March, 2, 1929.

1. EVIDENCE: Admitted and Stricken Out. Appellant cannot on appeal complain that the court at first permitted an expert witness to testify to a mere possibility that an injury to plaintiff's spine was caused by his fall upon his feet, where the whole testimony was later stricken out because plaintiff had alleged no injury to his spine.

2. DISCHARGE OF JURY: No Complaint in Motion. If appellant did not complain in the motion for a new trial of the court's refusal to discharge the jury he forfeited his right to make such complaint on appeal.

3. EVIDENCE: Irrelevant: Controverted: Instruction: Waiver. Appellant cannot be heard to complain that the trial court permitted an expert witness to testify to the mere possibility that an injury to plaintiff's spine was caused by his fall upon his feet, where appellant not only offered direct evidence as to the condition of plaintiff's spinal cord, or central nervous system, but cross-examined plaintiff's witnesses along that line at length, in an effort to prove that the crippled condition of plaintiff's feet was caused by a diseased condition of the spinal cord, and not by injury, and obtained a requested instruction telling the jury that they could not allow plaintiff damages "for any injury to or degeneration of the spinal cord or loss of sensation in his legs."

4. TRIAL THEORY: Fellow-Servant. A cause must be disposed of in the appellate court upon the same theory upon which it was tried below. There being nothing in the record to indicate that appellant relied upon the fellow-servant doctrine as a bar to plaintiff's right to recover, or that it undertook to raise that question in the trial court, either in the development of the facts or in its given or refused instructions, it cannot invoke that doctrine as a bar in the appellate court.

5. FELLOW-SERVANT: Negligence: Unsafe Place: Work Directed by Different Foremen. It is the master's duty to exercise ordinary care to keep his servant's place of work reasonably safe, and that is a non-delegable duty. The petition charged that defendant failed to provide and maintain a reasonably safe place for plaintiff to work, and the case was tried and submitted to the jury, by instructions on both sides, upon the issue of defendant's negligence in exposing plaintiff to an unusual danger, without notice or warning, while he was in the performance of his duty. He was a painter, and his foreman directed him to finish the job of painting a railroad car which stood on the shipping track; to do that it was necessary for him to stand on a ladder, set up with its lower end five or six inches from the rail of a parallel steel track. Another laborer was directed by his foreman, in charge of another department, to roll the wheels of a steel car on the steel track, while plaintiff was engaged with his back to that track, and the journal of the car, as it came by, struck and knocked down the ladder, causing plaintiff to fall. There was substantial evidence that no warning or notice had been given of the coming of the car, although plaintiff's dangerous situation could plainly be seen. Held, that it is wholly immaterial whether the laborer who rolled down the car wheels that struck the ladder, in response to the direction of his foreman, was ordinarily a fellow-servant of the plaintiff, and therefore a demurrer to the evidence was properly overruled.

6. FELLOW SERVANT: Negligence: Instruction: Act Done in Obedience to Orders. If the negligent act of one laborer, done in obedience to the direction of defendant's foreman, causes an injury to another laborer, his negligent act was the negligence of defendant, and an instruction authorizing a verdict for plaintiff which does not require the jury to find that the two laborers were not fellow-servants is proper.

7. EXCESSIVE VERDICT: Injury to Feet: Nine Thousand Dollars. The ladder on which plaintiff was standing, about eight feet from the ground, painting a railroad car, was knocked down by the negligent act of defendant in rolling the wheels or frame work of a car upon the near-by parallel track, causing him to fall "straight down" upon his feet. He was confined to his bed three or four months, and then for three months could walk only with the aid of crutches, and at the trial eighteen months later was still using a cane. He suffered intense pain, particularly in his feet, and has been unable to work since the injury. Previously he had been in good health, was earning eight dollars a day, and at the time of the trial was forty-three years of age. The heel bones in both feet were fractured, and the flattened condition of the bones is permanent. The ankles are inverted, or turn inward, and the arches are dropped, resulting in limited motion. There was injury to the spinal cord, but the expert testimony differed on the point whether this injury was caused by the injury to the feet, or some disease, and there was testimony that in walking with his cane he magnified his lameness. Held, that a judgment for nine thousand dollars cannot be held to be excessive.

8. ____: Lame Feet: Moving Picture. A moving picture, showing plaintiff, though using a cane, walking rapidly and without much impediment, may cause a spectator to underestimate or overestimate injuries in his feet and ankles, and is not of much probative force in determining the extent of such injuries.

Corpus Juris-Cyc. References: Appeal and Error, 3 C.J., Section 618, p. 718, n. 50; Section 863, p. 967, n. 42; 4 C.J., Section 2614, p. 704, n. 78; Section 2972, p. 989, n. 16; Section 2977, p. 996, n. 64. Damages, 17 C.J., Section 445, p. 1113, n. 85. Master and Servant, 39 C.J., Section 445, p. 322, n. 33; Section 717, p. 602, n. 79; Section 1325, p. 1132, n. 35.

Appeal from Circuit Court of City of St. Louis — Hon. H.A. Hamilton, Judge.

AFFIRMED.

Watts Gentry for appellant; G.A. Orth of counsel.

(1) The court erred in permitting Dr. Gray Briggs to testify to the mere possibility of a spine injury being caused by such a fall as plaintiff had when he alighted on his feet. The true test is not whether it is barely possible for such an injury to result, but whether it is reasonably probable that the fall was the cause of such an injury. Mahaney v. Rys. Co., 228 S.W. 821. (2) The court erred in overruling defendant's motion to discharge the jury after all the conversation that had occurred between the court and counsel for both sides relating to the condition of plaintiff's spinal cord, to failure of plaintiff to allege that such condition was caused by his fall, to his application for leave to amend the petition, to the granting of such leave, and, finally, to the abandoning of his application. So much occurred in the presence of the jury that tended to impress the jurors with the nature of plaintiff's spinal condition that the impression could not be eradicated by an instruction to disregard that condition. Trent v. Prtg. Co., 141 Mo. App. 437; State v. Barnes, 286 Mo. 665; Gore v. Brockman, 138 Mo. App. 23; Wojtylak v. Coal Co., 188 Mo. 260; Levels v. Railroad, 196 Mo. 606; Lewellen v. Haynie, 287 S.W. 634. It is impossible to tell how much the verdict was increased by consideration of injury to the spine and, therefore, ordering a remittitur (as was done) could not cure the error. Gibler v. Term Railroad Assn., 203 Mo. 208; Davis v. Davis, 235 S.W. 182; Lewellen v. Haynie, supra. (3) The court erred in overruling the demurrer to the evidence at the close of the whole case. Plaintiff's evidence failed to bring the case within the department rule recognized in Koerner v. Car Co., 209 Mo. 141. Prima facie, plaintiff and Rodgers, who injured him, were fellow-servants. The burden was on plaintiff to show that they were not fellow-servants, but he failed to so show. Guthrie v. Gillespie, 6 S.W.2d 886; McGowan v. Railroad, 61 Mo. 528; Blessing v. Ry. Co., 77 Mo. 410. There was a total failure of proof necessary to show that the business of defendant was divided into separate and distinct departments of service and that the plaintiff and the servant who injured him were in separate and distinct departments within the meaning of the law. Parker v. Railroad Co., 109 Mo. 409; Oker v. Const. Co., 158 Mo. App. 213. Plaintiff's bare statement that Kellerhouse was not in the same department in which he was employed constituted a mere scintilla of evidence, which was wholly insufficient to establish the fact that plaintiff was in a separate and distinct department of service from Kellerhouse and his men. A mere scintilla will be disregarded. Near v. Railroad, 261 Mo. 91; Peck v. Railway, 31 Mo. App. 126; Layton v. Chinberg, 282 S.W. 434; David v. Clarksville Cider Co., 171 S.W. 594. Plaintiff and the servant who caused his injury were mere fellow servants. Ryan v. Lea, 249 S.W. 683; Oker v. Const. Co., 158 Mo. App. 213; Johnson v. Railway, 104 Mo. App. 588; Van Bibber v. Swift Co., 286 Mo. 317; Jackson v. Mining Co., 106 Mo. App. 441: Card v. Eddy, 129 Mo. 510; Padgett v. Scullin-Gallagher Co., 160 Mo. App. 544; Relyea v. Railroad Co., 112 Mo. 86; Jones v. Tobacco Co., 284 S.W. 513. Rodgers' act in moving the wheels without notice was the mere act of a fellow servant which constituted one of the details of the work and was not the violation of a non-delegable duty by the master. Burge v. Am. Car Foundry Co., 274 S.W. 842; Rowe v. U. Rys. Co., 211 Mo. App. 526; Hawk v. McLeod Lbr. Co., 166 Mo. 121; McIntyre v. Tebbetts, 257 Mo. 117. (4) The court erred in giving Instruction 3 at the request of plaintiff. This instruction entirely ignored the department rule, and, instead of requiring the jury to find as a condition of plaintiff's right of recovery, that he and the servant who injured him were in separate and distinct departments of service, it permitted recovery if the wheels were rolled without any warning being given, no matter what servant of defendant did the negligent act. McGowan v. Railroad, 61 Mo. 528; Blessing v. Railway Co., 77 Mo. 410; Guthrie v. Gillespie, 6 S.W.2d 886. (5) The judgment is excessive. Stolze v. Transit Co., 188 Mo. 581.

Douglass Inman for respondent.

(1) The evidence objected to was stricken out by the court on motion of defendant, and hence there is no such evidence in the record as complained of in the first assignment of error. (2) The second error assigned by defendant is the failure of the court to discharge the jury on its motion therefor, but the defendant in its motion for a new trial failed to allege this as error or as ground for a new trial, and, therefore, this alleged error is not reviewable by this court. Kirby v. Heaton, 315 Mo. 338. (3) The only ground upon which defendant claims its demurrer should have been sustained is its claim that the evidence shows that Rodgers (the servant who injured plaintiff) was a fellow-servant of the plaintiff. But, the question of fellow-servant is not in the case for three reasons: (a) The injury to plaintiff was caused by the failure of defendant to furnish plaintiff a reasonably safe place to work, and this duty is non-delegable. Chulick v. Car Foundry Co., 199 S.W. 437; Koerner v. Car Co., 209 Mo. 141; Bender v. Grocer Co., 310 Mo. 488; McNulty v. Cement Co., 249 S.W. 734. (b) If the departmental doctrine was in the case, then plaintiff's evidence shows that he and Rodgers were in different departments, under different foremen and engaged in a different class of work, and this brought the case within the departmental doctrine. Koerner v. Car Co., 209 Mo. 141. (c) The defendant at the trial did not rely on the fellow-servant doctrine either in eliciting the evidence in developing its defense or in its instructions given or refused. On appeal the defendant is bound by the theory it tried the case on in the lower court. Guthrie v. Gillespie, 6 S.W.2d 886; St. Louis v. Contracting Co., 210 Mo. 491; Kane v. McMenamy, 307 Mo. 98. Defendant asked no instruction on the theory it was not liable if plaintiff and Rodgers were fellow-servants, and hence this court will not consider on appeal the fellow-servant doctrine, as it was not raised in the lower court. Pienieng v. Wells, 271 S.W. 66; Vitale v. Wells, 285 S.W. 522. (d) If the injury was caused by the combined negligence of Rodgers and one of defendant's foremen, either in ordering plaintiff to work without some method of protecting him or in rolling wheels without providing for warning, and it be conceded Rodgers was a fellow-servant, then plaintiff can recover. McNulty v. Cement Co., 249 S.W. 734. (4) The fourth error assigned is alleged error in giving Instruction 3, which failed to present the issue whether plaintiff and Rodgers were fellow-servants. This criticism is fully covered by what is said in Point 3. As the evidence of plaintiff at least raised an inference that plaintiff and defendant worked in different departments, which was not controverted by defendant, then it is not error to assume as true an undisputed fact in issue. State ex rel. v. Trimble, 260 S.W. 1003; Koenig v. Wells, 242 S.W. 118. (5) The evidence clearly discloses that the verdict is not excessive, and the trial court was not warranted in reducing the verdict to the amount he did. Godfrey v. Payne, 251 S.W. 133; O'Meare v. Hayden, 75 Cal. 801. The jury had a right to consider the injury to plaintiff's legs, and the loss of sensation in his legs, as this evidence was not only not objected to by defendant, but defendant put on its doctor and examined him as to this condition, and consented to have his injuries considered by the jury. Elliott v. Rys. Co., 157 Mo. App. 517; Bragg v. Rys. Co., 192 Mo. 331; Mellow v. Railroad, 105 Mo. 455; Realty Co. v. Ryan, 218 S.W. 413; Fisher Co. v. Realty Co., 159 Mo. 562.

HENWOOD, C.

This is an action for damages, in which Edward Snyder, plaintiff below, obtained a verdict in the sum of $15,000, for personal injuries suffered by him while employed by the defendant company. By an order of remittitur, with which plaintiff complied, his award of damages was reduced to $9,000, and, from the judgment for that amount, an appeal to this court has been perfected. (Two of the defendant company's foremen, Alfred Wenchel and Joseph Kellerhouse, were originally joined as defendants, but the trial court directed a verdict in their favor).

Plaintiff was employed as a painter at defendant's plant, in St. Charles, Missouri, where he had worked for seventeen years. The plant consisted of various buildings, shops, tracks, and other equipments, used in the manufacture of railroad cars. According to his testimony, plaintiff worked under the directions of Wenchel, a foreman of the paint department, and Rodgers, another employee of defendant, worked under the directions of Kellerhouse, a foreman of a different department, the wood department. The steel track extended north and south along the east side of the steel plant and the machine shop. The machine shop was some distance south of the steel plant, and, between these two buildings, there was a transfer table, by which cars and wheels were transferred from the steel track to other tracks, extending east and west, and vice versa. The shipping track, immediately east of the steel track and parallel thereto, was about four or five inches higher than the steel track, and the inside rails of the two tracks were about six feet apart. Plaintiff thus indicated the relative location of these buildings and tracks and the transfer table by referring to two photographs (Plaintiff's Exhibits A B).

On the morning of September 18, 1923, Wenchel directed plaintiff to "touch up" a refrigerator car which was standing on the shipping track, near the south end of the steel plant, and about eighty feet north of the machine shop. After painting some iron on the signal hose and air hose, and one place on the bottom of the car, he started to work on the side of the car next to the steel track, removing some black paint which had run down from the tin roof to the letter board, and retouching the name "Northern Pacific" on the letter board. The sides of the car extended out two feet from the rails. The roof extended out three inches more, and was fourteen feet high. He was using a ladder, sixteen feet long, with the upper end leaning against the roof of the car, and the lower end resting upon the ground, about five or six inches from the inside rail of the steel track. He said: "I put my ladder as far away from the track (steel track) as I could to be safe. If I had moved my ladder any further away from the track (steel track), it would have been almost straight up. After looking both north and south before I got on the ladder, I did not look any more after I got up. When I got up on the ladder, I did not see any wheels on the track or any person around there. I did not know they were going to put wheels on the track. Nobody had said anything to me about it or give me any notice or warning. I would not have placed my ladder there if I had known that the wheels were going to be rolled on the steel track. Warnings were generally given when flat cars were rolled out on that track, though I have seen them rolled out there without any warning. They are supposed to warn you. If anybody is working there, they are supposed to give a signal of some kind. Nobody ever did warn me that day or any other day. I was out there lots of times before and they never gave any warnings. I never did see or hear of their warning anybody out there, in the whole seventeen years that I worked there. I was once working under a car there and a switch engine moved the car over me without warning. I knew they moved cars without warning, and that was the reason I looked up and down the track for myself." While plaintiff was standing on the ladder, about eight feet from the ground, and working on the side of the car, as above mentioned, Rodgers rolled a pair of car wheels on the steel track, from a point about seventy-five feet south, and the journal (or axle extension) of the east wheel struck and knocked down the ladder, causing plaintiff to fall "straight down" on his feet, and to suffer the injuries herein complained of. The journals (or axle extensions) on these wheels were eleven inches long. Plaintiff had been on the ladder about fifteen minutes before Rodgers came along with the wheels, and he and the ladder were in plain view of any person on the steel track, north or south, for a distance of fifty feet. He was injured "sometime between eleven and eleven-thirty in the forenoon." While sitting on the ground, immediately after he fell from the ladder, he said to Rodgers: "Rodgers, you ought to of been able to see me up there;" and Rodgers said: "I seen the ladder, but it was too late." There was a concrete abutment under the ladder, but plaintiff was unable to say whether or not his feet struck this abutment when he fell. He did not see either Rodgers or Kellerhouse on that day, before he was hurt. And he had never seen any wheels rolled on the steel track before.

Concerning his injuries, plaintiff said: "I was confined to bed between three and four months and was then on crutches about three months. After that I used a cane, which I still use. I had awful pain in my heels. The doctor came to see me every day for awhile, between two and two and one-half months. During that time I suffered intense pain. I could not sleep at night on account of the pain in my heels. The pain in my heels still continues when I walk. Before I fell from the ladder, my general physical condition was good, including my feet. I have been unable to work since I was injured." He was earning $8 per day in wages at the time he was injured (September 18, 1923), and was forty-three years old at the time of the trial, in March, 1925.

Dr. Gray Briggs, X-ray specialist, took X-ray pictures of plaintiff's feet and ankles on June 27, 1924. Referring to these pictures he testified as follows: "They show that there has been a fracture of the os calcis or heel bones in both feet. They also show arthritis, that is, inflammation of the joint between the heel bone and the cuboid bone in the right foot, and both heel bones are compressed. There has been a comminuted fracture in both heel bones; they showed indication of fracture, and there was some falling of the arches as the result of that. This compression of the bone is, of course, permanent. They are not going to build up any more. The bones are battered, flattened in that shape (illustrating), and it is going to remain."

Dr. D.C. Todd, who treated plaintiff in June, 1924, said: "The ankles are inverted or turned inward, the arch is dropped and there is limited motion." He further said that these injuries were both permanent and progressive, and that they would necessarily cause pain and discomfort.

Dr. Robert E. Schlueter, at the request of defendant's counsel and with the consent of plaintiff's counsel, examined plaintiff a few days before the trial. Both in his written report and as a witness for defendant, he stated that he found no evidence of fracture, dislocation, nor any other injury; that plaintiff was suffering from anaesthesia, or loss of the sense of feeling, in both legs, caused by sclerosis, or hardening of some portions of the spinal cord; that such affliction is incurable and definitely progressive, and, in his opinion, could not be caused by an injury.

Dr. H.W. Hoge, nerve specialist, who examined plaintiff during the trial, testified in rebuttal for plaintiff. He said: "We naturally find, and probably do find more diseases affecting the spinal cord in one way or another than we do find that condition in persons who have had their spinal cord injured in an accident, but it is a common every-day occurrence to find just the same symptoms resulting from physical injuries to the spinal cord as we find resulting from disease." He also said that, in his opinion, a fall with enough force to break both heel bones would be sufficient to cause the condition in plaintiff's spinal cord, as described by Dr. Schlueter.

John W. Lawler, defendant's district manager, testified, for defendant, that he saw plaintiff frequently, before the trial, walking with a cane on the streets of St. Charles. Referring to such occasions, he said: "He walks very good at times, and at other times when he saw me he immediately became more lame."

Alfred P. Petill, a motion picture photographer, testified, for defendant, that, on October 3, 1924, he took a moving picture of plaintiff, while plaintiff was walking with a cane on a public sidewalk in St. Charles, Missouri; that the picture "was taken just like any other motion picture is taken, at regular speed;" that "we figure a foot a second goes through the camera at regular speed;" and that it correctly represents the "natural movements" and "normal motion" of the subjects shown in the picture. This picture was exhibited to the court and jury at the trial, and also to this court, in connection with the oral arguments of counsel in this court.

Both Rodgers and Kellerhouse, "straw boss" over Rodgers, in testifying for defendant, admitted that Kellerhouse directed Rodgers to roll the wheels on the steel track, and that the wheels were rolled toward the north from the machine shop. Kellerhouse further admitted that the car on which plaintiff was working could be seen "all the way from the transfer table." Both Rodgers and Kellerhouse further said that, while they were together shortly before plaintiff was injured, they had a conversation with plaintiff, in which they told plaintiff they were going to roll wheels on the steel track, and warned him to keep his ladder away from the track. On cross-examination, Kellerhouse said "it was three o'clock in the afternoon" when he notified plaintiff to stay off of the ladder.

In rebuttal, plaintiff offered in evidence a written statement signed by Rodgers before the trial (plaintiff's Exhibit C), in which Rodgers said: "I never saw Snyder before the wheels hit his ladder and I never heard Kellerhouse tell him not to get on the ladder — but Kellerhouse told me that he did tell Snyder not to get on ladder. I never gave any signals because I didn't see Snyder. Kellerhouse didn't say anything about ladder, simply said he had told Snyder that they were rolling wheels and to stay away from car."

Plaintiff also offered in evidence, in rebuttal, the deposition of Edgar Rohlfing, defendant's clerk, in which Rohlfing said that, "right after eleven o'clock," he found plaintiff injured, "sitting alongside the car;" that he assisted in carrying plaintiff to a taxicab; and that he made out a report of the accident in the afternoon. He further said that plaintiff "worked under Wenchel in the coach department," and that Kellerhouse had charge of the "labor gangs in the coach department."

I. Two of the contentions made by defendant may be considered together; first, that "the court erred in permitting the witness, Dr. Gray Briggs, to testify to the mere Evidence: possibility of a spine injury being caused by such Stricken Out: a fall as plaintiff had when he alighted on his Waiver of feet;" and second, that the court should have Objection. sustained defendant's motion to discharge the jury, on the ground that they were prejudiced against defendant by the remarks of counsel and the court relating to the admissibility of this testimony and the right of plaintiff to amend his petition by alleging injury to his central nervous system.

Manifestly, both of these contentions are based upon a misconception of the record. In the first place, the record shows that, while the testimony referred to was originally admitted over defendant's objection, it was later stricken out, upon defendant's motion, on the ground that plaintiff alleged no injury to his spine in his petition. In the second place, defendant did not complain, in its motion for a new trial, of the court's refusal to discharge the jury, and thereby forfeited its right to make such complaint on appeal. [Kirby v. Heaton, 315 Mo. 338, 286 S.W. 76.] Aside from this rule, defendant is not in a position to complain of the action of the trial court in this matter, because it not only offered direct evidence as to the condition of plaintiff's spinal cord, or central nervous system, in the written report and also in the oral testimony of its own witness, Dr. Schlueter, but cross-examined plaintiff's witnesses, Dr. Todd and Dr. Hoge, at length along that line, in an attempt to prove that the crippled condition of plaintiff's feet was caused by a diseased condition of his spinal cord, and not by injury. Moreover, in defendant's Instruction 7, the jury were told that, in the event they found for the plaintiff, they could not allow him any damages "for any injury to or degeneration of the spinal cord or loss of sensation in his legs." It follows that there is no merit in either of the contentions above mentioned.

II. It is urged that the court erred in overruling defendant's demurrer to the evidence at the close of the whole case. The only reason offered in support of this contention is Fellow-Servant. that "plaintiff, in his petition, bottoms his right of recovery upon the departmental rule," and, having failed to bring his case within that rule, by proving that Rodgers was not his fellow-servant, he is not entitled to recover.

The ultimate charge in the petition is that defendant failed to provide and maintain a reasonably safe place for plaintiff to work. The case was tried and submitted to the jury, by instructions on both sides, upon the issue of defendant's negligence in exposing plaintiff to an unusual danger, without any notice or warning thereof, while he was engaged in the due performance of his duty. And there is nothing in the record to indicate that defendant relied upon the fellow-servant doctrine as a bar to plaintiff's recovery, or that it undertook to raise that question in the court below, either in the development of the facts or in its given or refused instructions. It is elementary that a cause must be heard in the appellate court upon the same theory as that upon which it was tried. [Guthrie v. Gillespie (Mo. Sup.), 6 S.W.2d 886; Pienieng v. Wells (Mo. Sup.), 271 S.W. 62; Kane v. McMenamy, 307 Mo. 98, 270 S.W. 662; St. Louis v. Wright Contracting Co., 210 Mo. 491, 109 S.W. 6.] However, it is immaterial, under the undisputed facts in this case, whether or not Rodgers was ordinarily a fellow-servant of plaintiff. It is not disputed that plaintiff was directed by defendant, through its foreman, Wenchel, to finish the job of painting the car which stood on the shipping track, and that it was necessary for him to stand on a ladder, with his back toward the steel track, while engaged in doing that work. And it is admitted, by both Kellerhouse and Rodgers, that Rodgers was directed by defendant, through its foreman, Kellerhouse, to roll the wheels on the steel track, while plaintiff was so engaged. It was defendant's duty to exercise ordinary care to keep plaintiff's place of work reasonably safe, and that duty was a non-delegable one. The work Rodgers was directed to do affected the security of the place where plaintiff was directed to work, and it was defendant's duty to see that Rodgers did not perform said work in a negligent manner. There is substantial evidence tending to show that Rodgers was negligent in performing said work, in failing to warn plaintiff of the danger incident thereto, and for that negligence defendant is liable. The demurrer to the evidence was, therefore, properly overruled. [Bender v. Kroger Grocery Co. 310 Mo. 488, 276 S.W. 405; Koerner v. St. Louis Car Co., 209 Mo. 141, 107 S.W. 481; McNulty v. Atlas Portland Cement Co. (Mo. App.), 249 S.W. 730; Chulick v. American Car Foundry Co. (Mo. App.), 199 S.W. 437.]

III. Defendant challenges plaintiff's main instruction (No. 3) solely and only on the ground that it authorized a verdict for plaintiff without requiring the jury to find that Rodgers and plaintiff were not fellow-servants. Our conclusion on the demurrer to the evidence necessarily disposes Fellow-Servants. of this contention. As we have already said, in substance, the negligent act of Rodgers, which caused plaintiff's injuries, was the negligent act of defendant, in failing to exercise ordinary care to keep plaintiff's place of work reasonably safe. And plaintiff having made a case for the jury on that theory, it was not necessary for the jury to determine, nor is it necessary for us to decide, whether or not plaintiff and Rodgers were fellow-servants when engaged in performing the usual and ordinary duties of their employment. It is significant that defendant not only combated plaintiff, at the trial of this case, upon the theory of recovery above mentioned, but did not even request an instruction by which it sought to invoke the fellow-servant rule as a bar to plaintiff's recovery.

IV. Finally, it is argued that the judgment is excessive. This argument is not persuasive. The testimony of defendant's district manager, Mr. Lawler, that he had seen plaintiff walking "a great deal" after he was injured, and that "he walks very Excessive good at times, and at other times when he saw me he Verdict. immediately became more lame," was for the jury to consider in connection with all of the other facts and circumstances in evidence, relating to the nature and extent of plaintiff's injuries; likewise, the moving picture of plaintiff, exhibited at the trial and also before this court which shows plaintiff, though using a cane, walking at a rapid gait and without much impediment. In our opinion, this picture might cause a spectator to underestimate plaintiff's injuries in his feet and ankles, and what is commonly known as a slow motion picture, taken under the same circumstance, might cause a spectator to overestimate his injuries. Perhaps the jury were so impressed. Considering plaintiff's age and the evidence tending to show that he is permanently crippled in his feet and ankles, that he suffered much pain, and lost $8 per day in wages, from September 18, 1923, up to the time of the trial, in March, 1925, as the result of his injuries, and that his earning capacity is permanently impaired, it certainly would not be fair and reasonable for this court to say that the judgment of $9,000 is excessive. Indeed, we have upheld larger judgments, based upon similar injuries, facts and figures. [Ernst v. Ry. Co., 256 S.W. 222; Spencer v. Railroad Co., 297 S.W. 353; Jordan v. Ry. Co., 308 Mo. 31, 271 S.W. 997.] See also the case of Dees v. Const. Co., 8 S.W.2d l.c. 878, and cases therein cited.

In accordance with the conclusions above stated, the judgment is affirmed. Higbee and Davis, CC., concur.

PER CURIAM:

The foregoing opinion by HENWOOD, C., is adopted as the opinion of the court. All of the judges concur.