* Headnotes 1, Master and Servant, 26 Cyc., p. 1477; 2. Trial, 38 Cyc., p. 1632; 3. Trial, 38 Cyc., pp. 1783, 1787; 4. Appeal and Error, 4 C.J., Section 3013; Damages, 17 C.J., Section 365. Action for damages for personal injury. Verdict and judgment for plaintiff for $3000. Defendant appealed.
Plaintiff was working for defendant in the shops at Chaffee, Missouri, engaged in the repair of engines. The cause of action alleged in plaintiff's petition is substantially as follows: That he was directed by defendant "to remove certain wash-out plugs from the under side of the boiler of Engine No. 691 preparatory to washing said boiler. That in order to remove said wash-out plugs it became and was necessary for plaintiff to crawl into a small opening or space immediately under said boiler and engine and there lie on his back to perform the work required of him. That while plaintiff was engaged in removing said wash-out plugs he was surrounded by and in close proximity to the mechanism and machinery of said engine. That while plaintiff was removing said wash-out plugs and while he was exercising due care for his own safety another employee of the defendant without notice or warning to this plaintiff went into the cab of said engine and then and there carelessly and negligently moved the reverse lever of said engine and thereby caused the rods and other mechanism and machinery of said engine to be thrown with great force against the foot and ankle of plaintiff thereby bruising and spraining the same in and about the ankle and instep of said right foot which injury produced erysipelas and ulceration *Page 535 of plaintiff's said ankle, foot and instep." That the boiler and engine on which he was working was used by defendant in interstate commerce. That it was dangerous to move the lever and machinery of the engine while plaintiff was engaged in removing the wash-out plugs and that this fact was or should have been known by defendant. The answer admitted defendant was engaged in interstate commerce and pleaded contributory negligence and assumption of risk.
The plaintiff was the only witness who testified as to the facts relating to the manner in which the alleged injury was received. His testimony may be briefly summarized as follows: He was ordered by his superior to remove the wash-out plugs from the boiler of the engine on which he and others were working. To do this, he had to "scrouge in" and get under the boiler and lie on his back to do the work. That he was in that position removing the plugs from the under side of the boiler when he was hurt. While in that position some one in the cab of the engine moved the reverse lever which threw the rods and machinery of the engine down against his foot and ankle and that was what caused the injury. He could not see in the cab of the engine at the time and did not know who had moved the lever that caused the injury to him. That the machinery that dropped down and struck his foot and ankle could only be made to drop by some one in the cab of the engine moving the lever. That there were several men working around the engine and that no one had been around there that day that was not employed by defendant and engaged in work upon engines of defendant and some of them other than himself were engaged in work upon this particular engine.
It is first insisted that a demurrer to the testimony should have been sustained. On that question it is contended that it was necessary for plaintiff to prove at least four things: (1) that the reverse lever was moved by some one; (2) that the lever was moved by some one in the cab of the engine; (3) that the person who moved *Page 536 the lever was an employee of defendant; (4) that the person who moved the lever knew or ought to have known at the time that plaintiff was under the engine and might be hurt if the lever were moved. The first two of these are proven by the testimony of plaintiff that the lever was in the cab of the engine and that the dropping down of the machinery hitting his foot could only be brought about by the moving of the lever. The third is shown by testimony that there were no persons around the engine except employees of defendant. The fourth is shown by the physical facts. The construction of the engine and the fact that plaintiff was compelled to squeeze in to get to the place where he could do the work assigned to him and was then compelled to lie on his back under the engine while working is sufficient to show that any downward movement of the machinery of the engine might hit and injure him. The master, through its agent, had ordered plaintiff to do the work and must be held to have known where he was working and the position he was forced to assume in order to do the work. We are cited to a number of cases holding that defendant is presumed to be free from negligence and hence negligence must be proven by the plaintiff. Also that when specific acts of negligence are pleaded, the doctrine of resipsa loquitur does not apply. That these legal propositions are correct is too well established to need the citation of authorities to sustain them. We think, however, that while the burden of proof rested upon plaintiff in this case to make a prima-facie showing of all four of the facts above alluded to, there was sufficient evidence to take each one of them to the jury and hence the demurrer to the testimony was properly overruled.
It is contended that the instructions to the jury given on behalf of plaintiff were erroneous. Instruction No. 1 for plaintiff authorized a verdict for plaintiff on a finding of the facts therein stated but omitted to tell them that in order to find for plaintiff they must find that the person moving the lever knew or by the exercise of ordinary *Page 537 care should have known that the movement of the lever might injure some one. That omission was error. By an instruction given on behalf of defendant the jury were required to find that fact before they could return a verdict for plaintiff but this did not cure the error. Proof of that fact was an essential part of plaintiff's case and when that is true, the instruction for defendant which covers the same question does not cure the error, for, in that situation, the instruction given for defendant does not supplement the one given for plaintiff but is in conflict with it. [State ex rel. v. Ellison, 272 Mo. 571, 199 S.W. 984; Wojtylak v. Kansas Texas Coal Co., 188 Mo. 260, 87 S.W. 506.]
Instruction No. 2 for plaintiff on the measure of damages told the jury that if they found for plaintiff, then in arriving at the amount of plaintiff's damages "you will take into consideration the physical pain and mental anguish, if any, suffered by him in the past and pain and mental anguish, if any, he may suffer in the future as a result of his injuries, and the loss of earnings, if any, he has or may sustain as a direct result of his injuries, in all not to exceed the sum of $5000." (The italics are ours.)
The criticism of this instruction is levelled at the last clause and especially the use of the words "in all." The use of similar language has been criticised by the Supreme Court though never yet held reversible error by that court. It might, however, be so held at any time and it would be better to avoid the use of those words.
It is also contended that the damages assessed are excessive, but since the judgment must be reversed, it will not be necessary to discuss that question.
For the error noted in Instruction No. 1 for plaintiff, the judgment will be reversed and the cause remanded. Bradley, J., concurs; Bailey, J., not sitting. *Page 538