Hudson v. Moonier

• Decision Date: 03 February 1938
• Docket Number: No. 10898.,10898.
• Citation: 94 F.2d 132
• Parties: HUDSON et al. v. MOONIER.
• Court: U.S. Court of Appeals — Eighth Circuit

94 F.2d 132 (1938)

HUDSON et al. v. MOONIER.^*

No. 10898.

Circuit Court of Appeals, Eighth Circuit.

February 3, 1938.

Arnot L. Sheppard, of St. Louis, Mo. (Lon O. Hocker, James C. Jones, Jr., N. L. Beck, of Chicago, Ill., and Jones, Hocker, Gladney & Grand, of St. Louis, Mo., on the brief), for appellants.

Roberts P. Elam, of St. Louis, Mo. (Mark D. Eagleton and Eagleton, Waechter, Yost, Elam & Clark, all of St. Louis, Mo., on the brief), for appellee.

Before STONE, SANBORN, and WOODROUGH, Circuit Judges.

SANBORN, Circuit Judge.

Pius Moonier brought this action at law against Floyd Hudson and Curtis M. Fitch to recover damages for personal injuries. The case was tried to a jury. At the close of the evidence, each defendant made a motion for a directed verdict. These motions were denied. The jury returned a verdict for the plaintiff, and from the judgment entered thereon the defendants have appealed. They challenge the sufficiency of the evidence to sustain the verdict and the correctness of certain of the instructions of the court.

The evidence, taking that view of it most favorable to the plaintiff, discloses the facts to be, in substance, as follows:

On October 16, 1933, Fitch leased to A. Guthrie & Co., Inc. (which will be referred to as "Guthrie"), a number of automobile trucks for as long a period as Guthrie should require them for use in constructing a paved highway between Ste. Genevieve and Perryville, Missouri, under a contract between Guthrie and the Missouri State Highway Commission. Guthrie was to pay to Fitch a stipulated rental per truck-operating hour, and Fitch, as lessor of the trucks, agreed that he would "maintain the trucks in good working order and pay all costs of repairs and tires." Guthrie, as lessee, agreed that it would furnish all gasoline, lubricants, and drivers for the trucks at its own expense. The trucks were delivered to Guthrie by Fitch during the latter part of October, 1933. They were thereafter operated by drivers employed by Guthrie. When not in operation, they were kept in a yard at or near Perryville, where they were serviced and repaired by a mechanic named Johnson who was employed by Fitch and whose duty it was to maintain the trucks in good condition and repair. The nature of the work in which the trucks were used required frequent repairs. Shortly after the trucks had arrived upon the work, Guthrie commenced to use them in connection with paving the highway. The defendant Hudson, a truck driver employed by Guthrie, began to drive a three-ton Mack truck, numbered 19, which was one of the trucks covered by the lease. Hudson thereafter continued to operate this truck for some four or five weeks. A few days after the truck was first taken over by Hudson, which was shortly after it had been delivered to Guthrie, Hudson discovered that it had no horn or signaling device upon it, and he so reported to Fitch's employee Johnson. No horn was put upon the truck. This truck was "supposed to be" equipped with a horn. The other trucks were so equipped.

The plaintiff, a laborer in the employ of Guthrie, was on December 4, 1933, working as a "subgrader." The grading work was done by a grading machine. After the grading machine had graded a section of the highway under construction, chalk lines were placed on each side of the section which was to be paved, and these chalk lines indicated where the steel forms for the concrete were to be placed. It was within the 20-foot space between the chalk lines that the trucks operated. The plaintiff's duty was to follow the grading machine and with a shovel level the ground just outside of the chalk lines where it had been left too high or too low by the grading machine, so that the steel forms, the bases of which extended outwardly from the chalk line, could be properly placed. This necessarily required him to work outside of the chalk line, but in close proximity thereto. While he was at his work on December 4, 1933, stooping over, with his body some twelve inches outside the west chalk line and his head some three or four inches outside, and his back toward the north, he was struck in the head by the extreme right portion of the bumper of the truck being driven by Hudson in a southerly direction, and was severely injured. There were other trucks and tractors being operated within the chalk lines at the time, and there were other men working in close proximity to the plaintiff. Hudson at the time the accident occurred was endeavoring to drive the truck between a tractor and the west chalk line near the point where the plaintiff was working. Hudson saw the plaintiff when within a short distance from him (15 to 40 feet). Hudson thought that the truck which he was driving could pass between the tractor and the west chalk line, but realized that it was a close question. He slowed down, turned toward the west, and went through the motions of sounding the horn to warn the plaintiff of the approach of the truck, but there was no horn. At the time of the impact the truck was moving 10 or 15 miles per hour and was stopped some distance south of the point where it struck the plaintiff. Neither Hudson nor the man who was riding with him in the truck actually saw the accident occur. A laborer working near the plaintiff saw him struck, and testified that the wheel tracks of the truck indicated that its wheels had passed west beyond the chalk line three or four inches. Hudson's testimony was that there was no horn upon the truck and that the foot brake was defective, although by using both foot and emergency brakes "you could get by with them." There was testimony that on the morning after the accident, the brakes on the truck were poor and that it had no horn or at least none that would sound. With good brakes, the truck, at the speed it was going just prior to the accident (15 or 20 miles per hour), could have been stopped in from 30 to 40 feet.

The plaintiff in his second amended complaint charged that the truck which struck him was owned, serviced, and maintained by defendant Fitch and operated by Guthrie with the knowledge and consent of Fitch; that Fitch knew that it would be used upon the construction work where the employees of Guthrie were, and that the operation of the truck was likely to injure such employees if the truck was defective, out of repair, or improperly equipped; that Fitch knew or should have known that the truck was defective and dangerous and was likely to injure the plaintiff and others, in that it was not equipped with a horn or other signalling device, but that Fitch permitted the defendant Hudson to operate the truck in its defective condition, and was therefore negligent, and that Hudson was also negligent in the operation of the truck in its defective condition, and that the combined negligence of the defendants proximately caused the plaintiff's injuries. In their answer the defendants denied that they were negligent, alleged that the plaintiff was guilty of contributory negligence, and asserted that he could not recover from Hudson in any event because the plaintiff had accepted compensation from Guthrie under the Workmen's Compensation Act of Missouri, Mo.St.Ann. § 3299 et seq., p. 8229 et seq., and Hudson was a fellow servant and not a "third person" as defined in the act.

The theory upon which the court submitted the case to the jury is disclosed by the following portions of the court's charge: "* * * and if you further find that both the defendant, Floyd Hudson, and the defendant, Curtis M. Fitch, through his agents and servants, knew that defendant, Fitch's automobile truck was to be, and was in fact, used in the construction work mentioned in evidence, and that said truck would be, and was in fact, driven and operated about said work in places where employees of the Guthrie Construction Company, and particularly the plaintiff, were likely to be, and if you further find that both the defendant, Floyd Hudson, and the defendant, Curtis M. Fitch, through his agents and servants knew, or by the exercise of ordinary care on their parts could have known, that said truck was not equipped with a horn or signaling device which could be used to warn said employees on said work whenever said truck came into close and dangerous proximity to said employees, and that by reason thereof, if you so find, said truck was dangerous and not reasonably safe for operation under the circumstances there, and was likely to cause injury to employees of said Guthrie Construction Company, and particularly the plaintiff, and if you further find that, notwithstanding the aforesaid facts, if you find them to be facts, the said defendant, Curtis M. Fitch, through his agents and servants, suffered and permitted the defendant, Floyd Hudson, to then and there drive and operate said automobile truck, and the defendant, Floyd Hudson, did then and there drive and operate said automobile truck, as aforesaid, when the defendants, their agents and servants knew, or by the exercise of ordinary care could have known, that said automobile truck was defective and dangerous, as aforesaid, then, in so doing, the defendants were guilty of negligence."

We are satisfied that the issues submitted to the jury were all issues of fact if Fitch owed to the plaintiff the duty of maintaining this truck in a reasonably safe condition. If Fitch owed no duty to the plaintiff with respect to the maintenance and repair of the truck, then the judgment cannot stand as to Fitch. It is argued that the failure of Fitch to repair was not in whole or in part the proximate cause of the accident; that the negligence of Fitch and Hudson was not concurrent; and that the plaintiff was guilty of contributory negligence. These questions, in our opinion, were not questions of law for the court and were properly left to the jury.

It is the contention of the defendant Fitch that he owed no duty whatever to the plaintiff to equip this truck with a horn or to keep it in good...