70 S.W. 519 (Mo.App. 1902), Parsons v. Hammond Packing Co.

Citation:70 S.W. 519, 96 Mo.App. 372
Opinion Judge:SMITH, P. J.
Party Name:EDWARD B. PARSONS, Respondent, v. HAMMOND PACKING CO., Appellant
Attorney:Brown & Dolman for appellant. W. K. Amick and Allen & Mayer for respondent.
Case Date:November 03, 1902
Court:Court of Appeals of Missouri
 
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Page 519

70 S.W. 519 (Mo.App. 1902)

96 Mo.App. 372

EDWARD B. PARSONS, Respondent,

v.

HAMMOND PACKING CO., Appellant

Court of Appeals of Missouri, Kansas City

November 3, 1902

Appealed from Buchanan Circuit Court.--Hon. A. M. Woodson, Judge.

AFFIRMED.

Judgment affirmed.

Brown & Dolman for appellant.

(1) "It is well settled that the master may conduct his business in his own way and the employee knowing the hazards of his employment, waives the right to compensation for injuries incidentally resulting therefrom." Bradley v. Railway, 138 Mo. 293; (2) Whatever danger there was, was perfectly evident to Parsons and was a risk assumed by him. Jackson v. Railroad, 104 Mo. 448; Thomas v. Railroad, 109 Mo. 200; Ring v. Railroad, 112 Mo. 220; Junior v. Electric Co., 127 Mo. 79; Lucy v. Oil Co., 127 Mo. 40; Roberts v. Telephone Co., 166 Mo. 378; Hunt v. Kile, 98 F. 49; Dredging Co. v. Walls, 84 F. 428. (3) That the box would slip off if the handles were raised too high, either by the act of Parsons himself or by a jolt in pulling the truck over the doorsill was a matter within the ordinary operation of the laws of gravitation which plaintiff was bound to take notice of and govern himself accordingly. Walsh v. Railway, 27 Minn. 367; Nugent v. Milling Co., 131 Mo. 253; Hill v. Drug Co., 140 Mo. 433; Hook v. Railway, 162 Mo. 567. (4) There is no evidence that the absence of the cleat on the end of the truck was in any way the cause of the injury complained of. The case, therefore, ought not to have been submitted to the jury. Plefka v. Knapp, 145 Mo. 316; Settle v. Railroad, 127 Mo. 336; Hicks v. Railroad, 46 Mo.App. 304; Guffey v. Railroad, 53 Mo.App. 462. (5) The court erred in giving to the jury plaintiff's instruction No. 1. Tabler v. Railroad, 93 Mo. 79; Bowen v. Railroad, 95 Mo. 268; Farrel v. Railroad, 115 Mo. 503; Grattis v. Railroad, 153 Mo. 380; Bohn v. Railroad, 106 Mo. 429.

W. K. Amick and Allen & Mayer for respondent.

(1) The risk incident to using the defective truck was not a risk of his employment. Herbert v. Shoe Co., 90 Mo.App. 305; Pauk v. Beef & Pork Co., 159 Mo. 467; Settle v. Railroad, 127 Mo. 336; Blanton v. Dold, 109 Mo. 64; Booth v. Railroad, 76 Mo.App. 516; Smith v. Coal Co., 75 Mo.App. 177. (2) There was substantial evidence showing that the boxes of ice on the truck did slip backwards on the truck because of the jarring over the thresholds; and because there was no cleat they slipped off the truck and unbalanced it and injured plaintiff. Sullivan v. Railroad, 107 Mo. 66; Herdler v. Range Co., 136 Mo. 3; Larson v. Mining Co., 71 Mo.App. 512. (3) Defendant complains of plaintiff's instruction No. 1. This instruction is a fair statement of the law as applicable to the facts in this case. Lewis, Admr., v. Railroad, 59 Mo. 945; Gibson v. Railroad, 46 Mo. 163; O'Mellia v. Railroad, 115 Mo. 205; Muirhead v. Railroad, 19 Mo.App. 634; Gibson v. Railroad, 60 Mo. 160.

OPINION

[96 Mo.App. 374] SMITH, P. J.

--This is an action to recover damages for personal injuries alleged to have been received by plaintiff in consequence of the negligence of the defendant. The substantive facts upon which plaintiff bases his right to recover may be gleaned from the allegations of his petition which are as follows:

". . .

"Second. That plaintiff was in defendant's employ and his duties were to pack ice about pork tenderloins in boxes. That the ice gave out and plaintiff was ordered by defendant's foreman, under whose control he was working, to take a certain truck, which he pointed out to plaintiff, and haul ice. That the truck was from five to seven feet long and two or three feet wide, was supported by two wheels two feet in diameter placed under

Page 520

the center; at one end was two handles and two legs underneath, just back of the handles to rest the truck on. That said truck was difficult to handle in hauling heavy loads of ice as it was difficult to keep the top of the truck in a horizontal position. That said truck was defective and in bad repair in this, that the piece of wood or iron two or three inches high, and as long as the top of the truck was wide, which was part of said truck and belonged on the top of said truck near the back end thereof and extended crosswise of said truck the full width thereof, and which should have been securely fastened to the [96 Mo.App. 375] top of said truck, was broken off and missing from said truck, so that there was nothing to hold the load in place and keep it from slipping off of the rear end.

"Third. That plaintiff had never been called upon before to haul ice with such a truck, as that was not a part of his duties. That hauling heavy loads of ice was difficult and dangerous work and required experience and skill in that work to do it with safety. Plaintiff had had no experience in that kind of work and was not familiar with the proper construction and operation of such trucks and was unaware of the dangers incident thereto. That plaintiff did not know that the truck was defective and out of repair, but that defendant's foreman had knowledge of that fact.

"Fourth. That in pursuance to the foreman's order the truck was heavily loaded with boxes of ice, about eight hundred pounds, and plaintiff taking hold of the handles started with it. That in the passage there was a threshold strip at a door and on either side of the threshold strip the floor was worn by the constant passage of trucks so that there were holes and depressions in the floor...

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