
    WALTER OBORN, Respondent, v. WILLIAM R. NELSON, Appellant.
    Kansas City Court of Appeals,
    February 21, 1910.
    1. MASTER AND SERVANT: Negligence: Practice: Sufficiency of Evidence. Plaintiff was in defendant’s employ. His duties required him to work about a printing press. Tbe press was operated by electricity, and it was started and stopped by electric buttons. Plaintiff stopped tbe machine to remove paper wbicb bad improperly wrapped around a roller. Tbe machine suddenly started, injuring plaintiff’s band. Although there were several possible causes for this sudden action of tbe machine, yet under the evidence the jury were not compelled to resort to conjecture to make a finding that its starting was due to negligence on the part of the defendant.
    2. -: -: Duty of Inspection: Purchase From Reliable Maker: Notice of Defect. There being evidence that the machine had suddenly started on prior occasions defendant owed plaintiff the duty to use reasonable care to remedy the defect. Defendant could not relieve himself of the duty of inspection by showing that the press was of standard make and of high quality, and the sufficiency of defendant’s inspection was a question for the jury.
    3. APPELLATE COURTS: Jurisdiction: Amount of Judgment. Plaintiff recovered a verdict of $8,500. As a condition precedent to overruling defendant’s motion for a new trial the court below ordered a remittitur of $4,000. An appeal is taken from the judgment and not from the verdict, and therefore the court of appeals had jurisdiction.
    4. DAMAGES: Excessive Verdict. Plaintiff, a young man, had one of his fingers torn away below the last joint, another was amputated at the second joint, another was left disfigured and stiff. One half the strength of his right arm was lost. In addition to his press work plaintiff had earned money as a musician. A judgment for $4,500 was not excessive.
    5. PLEADING: Variance. Plaintiff’s petition described him as a pressman. The evidence showed that he was in fact “first assistant tension man.” He was performing his ordinary duties when injured. The difference between the petition and the evidence as to his official title was immaterial.
    
      Appéal from Jackson Circuit Court. — Hon. E. E. Porterfield, Judge.
    Affirmed.
    
      Warner, Dean, McLeod & Timmonds for appellant.
    (1) Defendant purchased a machine of standard make and daily inspected the same. He thereby performed his full duty. Little v. Head, 69 N. H. 494; 1 Labatt, Master and Servant, secs. 44, 153. The doctrine of res ipsa loquitur did not apply in this case. Breen v. Cooperage Co., 50 Mo. App. 202; Kremer v. Mfg. Co., 120 Mo. App. 247, 252; Deckard v. Railroad, 111 Mo. App. 117; O’Donnell v. Baumm, 38 Mo. App. 245. (2) A master is not liable for injuries caused by latent defects not discoverable by reasonable inspection. Current v. Railroad, 86 Mo. 62; Essex, etc., Co. v. Kelley, 29 Atl. 427; Throckmorton v. Railroad, 39 S. W. 174; Labatt, Master and Servant, secs. 126, 153; O’Donnell v. Baumm, 38 Mo. App. 245; Louisville, etc., Co. v. Allen, 78 Ala. 494. (3) A master must guard against dangers that are reasonably probable. Ray’s Negligence of Imposed Duties, 133; Webb’s Pollock on Torts, 45; Hysell v. Swift & Co., 78 Mo. App. 50; Brewing Co. v. Talbott, 141 Mo. 674. He is not bound to use more than ordinary care. Bennett v. Lumber Co., 116 Mo. App. 699; Hester v. Packing Co., 84 Mo. App. 454; Elliott v. Railroad, 67 Mo. 274; Covey v. Railroad, 86 Mo. 641; Pavey v. Railroad, 85 Mo. App. 221; Current v. Railroad, 86 Mo. 62; Breen v. Cooperage Co., 50 M'o. App. 202; Howard v. Railroad, 173 Mo. 531; -Curtis v. McNair, 173 Mo. 270; Trigg v. Sand Co., 187 Mo. 227. (4) The mere fact that an accident happened because of a. defective appliance cannot be taken as evidence of defendant’s negligence. Railroad v. Kellogg, 55 Neb. 748. (5) No presumption of negligence on the part of the master arises'or is shown from the mere fact of the accident. Blanton y. Dold, 109 Mo. 64; Bohn v. Railroad, 106 Mo. 429; Pierce v. Kile, 80 Fed. 865; Stone Co. y. McCain, 133 Ind. 231; Reynolds v. Woolen Co., '168 Mass. 501; Redmond y. Lumber Co., 96 Mich. 545. (6) A plaintiff! cannot by voluntary remittitur control the jurisdiction of the appellate court. Schantz v. Railroad, 46 Mo. App. 397. (7) Where the verdict is so excessive as to compel a conviction that the jury did not fairly weigh the evidence, the verdict should be wholly set aside. Oreve Coeur Lake Co. v. Tamm, 90 Mo. App. 189; Partello v. Railroad, 217 Mo. 658; Taylor v. Railroad, 185 Mo. 239; Boggess v. Railroad, 118 Mo. 328; Zurfluh v. Railroad, 46 Mo. App. 636. (8) There was a variance between plaintiff’s pleading and proof. Jones v. Louderman, 39 Mo. 287. And, where there is a fátal variance; or a failure of proof as to a material allegation, the point is raised and preserved by demurrer to the evidence, as was done in this case. Gaty v. Sack, 19 M’o. App. 470; Sisney v. Arnold, 28 Mo. App. 568; Trimble v. Stewart, 35 Mo. App. 537; Wallich v. Morgan, 39 Mo. App. 469; Gray v. Race; 51 Mo. App. 553; Singleton v. Railroad, 41 Mo. 466; State v. Myers, 82 Mo. 558; Gurley v. Railroad, 93 Mo. 445; Hite v. Metropolitan, 130 Mo. 132.
    
      Kelley, Brewster & Buehholz for respondent.
    (1) Defendant did not avail itself of its right to claim a variance. He filed no affidavit as required in such case. R. S. 1899, sec. 655; Harrison v. Lakenan,. 189 Mo. 581; Bank v. Assurance Co., 106 M’o. App. 114; Turner & Collins v. Railroad, 51 Mo. 501; Wal-lich v. Morgan, 39 Mo. App. 469; Gaty v. Sack, 19 Mo. App. 470. (2) The verdict was not excessive. Phippen v. Railroad, 196 Mo. 348; Broyhill v. Norton, 175 Mo. 190; Rapp v. Transit Co., 190 Mo. 144; Dougherty v. Railroad, 97 Mo. 666; Stoltze v. Transit Co., 188 Mo. 581; Burdict v. Railroad, 123 M’o. 236. .
   JOHNSON, J.

This is an action for negligence. Trial by jury and. a verdict for plaintiff for $8500. On bearing of motion for a new trial, tbe court held tbe verdict excessive and ordered a remittitur of $3500, as a condition to overruling tbe motion. Then plaintiff voluntarily filed a remittitur of $4000, tbe motion was overruled and judgment rendered for plaintiff in tbe sum of $4500. Defendant appealed.

Tbe injury occurred April 29, 1907, in tbe press room of tbe newspaper plant owned and operated by defendant in Kansas City. Six large printing presses of latest type and of best construction were stationed in this room. Tbe presses were run by electricity and were equipped with push buttons for tbe use of tbe operator in applying, stopping and regulating tbe power. One of these presses, known as No. 4, is tbe object of present concern. Plaintiff bad been employed by defendant some six years and, at tbe time of bis injury, was working at that press in tbe capacity of “first assistant tension man.” His duties, as stated by bim, were “to help lead tbe sheet through, watch tbe rollers, change tbe muslin, and put on tbe blankets and help lock up tbe rollers, sometimes we done that, and start and stop tbe machine, and when tbe press was continually running we bad to run tbe tension, that was tbe most particular thing in my position.”

When a roll of white paper was set in its place, a “lead” bad to be started by running tbe end of tbe roll over a prescribed course through tbe machine'. And after tbe lead was started tbe “tension” of tbe machine* bad to be watched and regulated in order that tbe lead or paper ribbon would run through without breaking. Either on account of some defect in the paper or on account of tbe “tension” being too tight, tbe paper occasionally would break and wrap around a roller. When this occurred, tbe machine bad to be stopped, tbe roller cleaned of tbe clogging paper and a new lead started.

It was tbe duty of plaintiff to perform this task and be was thus engaged when injured. Tbe paper bad broken, plaintiff had stopped the press, and bad begun to clear away tbe paper wrapped around a roller when tbe machine suddenly started and as suddenly stopped, but not until plaintiff’s right hand was caught between moving rollers and crushed. Plaintiff contends that what he describes as the sudden jumping of the machine was caused by some defect in tbe electrical appliance for controlling tbe power, while defendant argues that the cause of the injury is presented by the evidence as a thing of pure conjecture.

The press was eighteen or twenty feet long,. eleven feet high, and nine feet wide. It had eight sets or “stations” of push buttons, each station consisting of five buttons. The stations, each 4x8 inches in size, were placed about the machine at the most convenient places for the operators. One button would start the machine gradually, another more rapidly, another would stop it quickly, and so on. One of the buttons, called the “safety,” when set would lock the machine so that it would not respond to the action of any other button until the safety was released. The evidence of plaintiff is to the effect that he pushed a stop button, that the press came to a full stop before he began the work of cleaning the roller, that he set the safety button and that neither he nor any one else pushed any other button before the machine jumped and hurt him. Further, it appears that in the “jump” the rollers only moved eight or ten inches, that it would be impossible to move them so slightly by the use of the buttons; that the machine had been observed by other workmen to jump when the power was shut off and the safety set; that complaint had been made to the foreman and that the electrician had tinkered with the “stations” without remedial results.

In attempting to account for the injury, one of defendant’s witnesses said: “He may have reached to put the safety in and pressed the wrong button. That would be one way, and not looking for tbe press to start up be could bave bad bis finger in tbe cylinder- and that drew it in. Then another way, be could bave walked by to tbe cylinder and put bis band in before tbe press bad really stopped. A press would — if it stopped on bigb speed, it would run from twenty to thirty revolutions before it stopped. It would be very easy for a man in a rush to walk tbe distance he did, it would be only three feet, one step, and put bis band in. And it could be that some of the other boys bad started it when be was working there. That is three different ways it could bave been done.” And in argument counsel for defendant suggest tbe likelihood of an accidental contact between some part of plaintiff’s body and a push button. But we find all of these theories positively negatived in tbe evidence of plaintiff.

In tbe posture of tbe case presented by the demurrer to tbe evidence, we must give full credit to tbe evidence of plaintiff, which shows that the press bad stopped and the safety was set before be thrust bis hand into tbe place where it was caught; that bis body was too far from a station to make tbe inference that he accidentally touched a. • button anything but tbe most remote conjecture, and that nobody did touch any of tbe buttons.

Tbe petition alleges that “Plaintiff was employed by defendant as a pressman” and that while be “was working on said press, tbe paper became caught between said rollers or cylinders and began to wrap around tbe same. That said pressman in charge of said press and under whom this plaintiff was at tbe time working, stopped said press and plaintiff started to tear away said paper. That while plaintiff was attempting to tear away said paper, said press suddenly started up, although none of said buttons bad been pushed,” etc.

The first point advanced in tbe argument of tbe demurrer to the evidence is that there is a fatal variance between the allegations and the proof of plaintiff, because the allegation is that plaintiff was a pressman and that “it was necessary for the pressman to tear the paper away with his "hands,” while the proof shows that plaintiff was not the pressman but the “first assistant tension man.” By whatever name he was called, the allegation and proof show it was the duty of plaintiff to tear away the clogging paper and that he was in the performance of that duty when injured. A variance between petition and evidence is material only when it appears that there is a failure of proof as to one or more of the essential elements of the cause of action or that the defendant might have been misled to his detriment by the incorrect averment. It is the expressed design of the code, and it should be given full recognition by the courts, that inaccuracies in. pleadings of no prejudicial effect should not be made a ground for the reversal of a meritorious judgment. The objection to the petition is too hypercritical to impress us.

We do not agree with defendant that the verdict finding negligence of defendant to have been the proximate cause of the injury must rest on conjecture and speculation. To the contrary, we find the evidence of plaintiff points directly and unequivocally to negligence. Obviously, the machine could not start without electricity. If plaintiff and his witnesses are to be believed (and we see no reason for discarding their testimony), the machine gave an eccentric and very brief start at a time when the buttons were pushed to. shut off the power entirely. Such occurrence could result only from a slight and momentary short circuit caused by some defect in the appliance for control of the power. The rule is well settled that where the evidence of plaintiff discloses that the injury might have resulted from one of two or more causes and that some of such causes were disassociated from the negligence averred, there can be no recovery, since, necessarily the jury would he compelled to indulge in speculation to find the defendant guilty of negligence; but where, as here, the evidence of the plaintiff points directly to the alleged negligence as the sole cause of the injury, the burden of proof is sustained and the case should go to the jury. Defendant argues the claim that the machine jumped is an afterthought and refers to the admission of plaintiff that, at first, he thought the pressman had started the press by pushing a button. But plaintiff says he‘ did not know the machine had jumped before and, as he was not versed in electrical science, it is not surprising that his mind should regard some human agency as the cause of the action of the press. The most that may be said of the admission is that the jury were entitled to weigh it with the other facts and circumstances of the case.

Further, it is contended that as the press was of standard make and of high quality and was inspected daily, defendant must be held to have discharged his full duty to plaintiff and cannot be held liable for negligence in failing to discover a latent defect. It sufficiently answers that argument to say that knowledge of defendant, either actual or constructive, that the machine was defective would deprive him of the right to rely on any presumption and would impose on him the duty to use reasonable care to remedy the defect. Moreover, the defect depicted by the evidence of plaintiff was not latent. True, the mechanism of the appliance controlling the power was hidden and it could not be told except by expert examination just what was causing the occasional short circuit, but the existence ‘of a short circuit proclaimed in no uncertain manner the presence of a defect and was enough, of itself, to impel.an ordinarily careful and prudent person in the situation of defendant to take' prompt steps to discover and repair the specific defect. Referring to the contention that defendant did all he could do when he had the machine inspected daily by an expert, we cannot give that evidence of defendant the conclusive-effect claimed for it. The contention is fully answered when we say that, the jury had the right to believe otherwise. No error was committed in overruling the demurrer to the evidence, nor do we find any substantial error in the rulings of the court on the instructions. The issues were correctly and fairly submitted.

Point is made that this court has no jurisdiction of the appeal since the amount of the verdict was in excess of our jurisdiction and plaintiff could not change the appellate forum by a voluntary remittitur. The point must be ruled against defendant. The appeal is prosecuted from the judgment, not the verdict, and the judgment was for $4500, an amount then and now Avithin our jurisdiction.

Finally, it is argued that the judgment is still excessive and that the size of the verdict denotes passion or prejudice on the part of the jury. Plaintiff is a young man. The injury maimed his right hand and left it permanently impaired. One of the fingers was torn aAvay beloAV the last joint, another was amputated at the second joint; another was so mashed it always will be disfigured .and stiff. At least one-half the strength of the right arm is lost. In addition to his regular employment, plaintiff played musical instruments as an avocation and thereby added materially to his income. Considering the age and earning capacity of plaintiff at the time of his injury, the serious and lasting impairment of his usefulness; his disfigurement and the pain, suffering and humiliation he has endured and will suffer, we do not feel justified in saying that the judgment is excessive. In Phippin v. Railroad, 196 Mo. 321, the plaintiff lost all the digits of his night hand except the thumb. The Supreme Court ordered a remittitur of $3000 from a verdict of $12,000, allowing a judgment to be entered for $9000. The opinion, says: “When the nature and character of plaintiff’s vocation in life is considered, the loss of his right hand was tantamount to a permanent deprivation of the means of earning a livelihood.” The injury in the present instance is but a little less serious than that considered by the Supreme Court and we regard that case as authority for our ruling that the judgment is not excessive.

Finding no substántial error in the record, the judgment is affirmed.

All concur.  