Alvarez v. Traffic Motor Truck Corporation

• Decision Date: 14 April 1925
• Docket Number: No. 18839.,18839.
• Citation: 271 S.W. 531
• Parties: ALVAREZ v. TRAFFIC MOTOR TRUCK CORPORATION.
• Court: Missouri Court of Appeals

271 S.W. 531

ALVAREZ v. TRAFFIC MOTOR TRUCK CORPORATION.

No. 18839.

St. Louis Court of Appeals. Missouri.

April 14, 1925.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Action by Charles Alvarez against the Traffic Motor Truck Corporation. Judgment for plaintiff, and the defendant appeals. Affirmed.

Jones, Rocker, Sullivan & Angert, of St. Louis, for appellant.

S. D. Flanagan and Curlee & Hay, all of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries sustained by plaintiff while at its manufacturing plant in the city of St. Louis. The cause was tried to a jury, there was a verdict and judgment for plaintiff, and the defendant appeals.

The petition charges that the plaintiff on October 4, 1922, was in the employ of defendant, and, while engaged in moving a crated automobile, was struck by a wooden roller and injured as a direct result of the negligence of defendant in the following respects: (1) That the defendant negligently ordered plaintiff to work in between the crated automobile, which was resting on rollers, and the front end of a motor vehicle, which was pushing the crated automobile, when the defendant knew, or by the exercise of ordinary care could have known, that the place where plaintiff was ordered to work was unsafe and dangerous, and that the wooden rollers were likely to fly up and strike plaintiff, and that he would be likely to be injured thereby; (2) that the defendant negligently failed to secure or tie the rollers when defendant knew, or by the exercise of ordinary care could have known, that said rollers were not tied, and were insecure, and would be likely to fly up and strike plaintiff and injure him; (3) that defendant negligently failed to warn plaintiff that the rollers were loose, dangerous, and insecure, and were apt to fly up and strike and injure plaintiff; (4) that the defendant negligently failed to furnish plaintiff a reasonably safe place to work, in that defendant ordered plaintiff to hold a board between the crated automobile and the Motor vehicle pushing the same, in such position that the plaintiff could be struck by the rollers, when defendant knew, or by the exercise of ordinary care could have known, that said place was unsafe, and that said rollers were apt to fly out and injure plaintiff.

There was evidence tending to show the following facts: At the time the plaintiff sustained the injuries for which he sues, he and three other laborers in charge of defendant's foreman were engaged in moving a large crate containing a disassembled automobile truck over a platform in process of loading it into a freight car for shipment. The crate was about 15 feet long, 42 inches wide, and 5 feet high, and with its contents weighed 4,700 pounds. The crate was being moved over the platform to the car on which it was to be loaded. Four wooden rollers about 4 inches in diameter were placed under the crate. The crate was then pushed or shoved over the platform by an automobile truck operated by the foreman. In thus pushing or shoving the crate along the platform, the bumper of the automobile rested against the rear end of the crate. At the time plaintiff was injured he was holding a plank about 3 feet long between the rearend of the crate mid the bumper of the automobile truck which was pushing the crate. It was necessary that a board be placed on the rear end of the crate to receive the bumper in order to prevent the bumper from breaking the boards of the crate. The rollers underneath the crate extended out about 4 inches on each side of the crate. As the crate was pushed forward, the rollers would work out from under the crate at the rear end. As the rollers worked out at the rear end of the crate they would be placed underneath the front end, and the operation continued. The, plaintiff was inexperienced in this character of work. He had been called from another department of defendant's plant to aid in this work. He had assisted in the operation of loading one crate just previous to the operation in which he was injured. This was his only experience in this character of work previous to his injury. In the previous operation a board was nailed to the rear of the crate to receive the bumper of the automobile truck when pushing the crate. In other operations in loading crates prior to the time plaintiff was called to assist in the work, a roller was held by one of the workmen between the crate and the bumper of the truck, which was of sufficient length that the workman was not required to stand near the crate while holding the roller. When the plaintiff was injured he was acting under the immediate orders of the foreman. He was not warned of the danger of standing near the crate while it was being pushed. On the contrary, he was expressly assured by the foreman that there was no danger. When the foreman ordered the plaintiff to hold the board between the crate and the truck, plaintiff protested and asked the foreman why the board should not be nailed to the rear of the crate as was done in the previous operation. To this the foreman replied; "Go ahead; don't be afraid; you won't get hurt." Whereupon the plaintiff took a position to the left of the crate, with his left foot about 6 inches from the side of the crate and back of the roller near the rear end of the crate and held the board against the rear end of the crate about 3 feet above the platform so as to receive the bumper of the truck. It was necessary for him to stand in this position in order to properly hold the board as directed by the foreman. The plaintiff was using the particular board the foreman directed him to use. While the plaintiff held the board in the position just mentioned, the crate was shoved forward by the truck, and the roller underneath the crate near the rear end came out "crooked," and struck or passed over the plaintiff's left foot and injured it, breaking the bones of the instep. It seems that the end of the roller next to plaintiff kicked back and came out from under the crate at the rear end, and struck or passed over the plaintiff's foot, while the other end of the roller remained under the crate. It was necessary for the plaintiff, in order to hold the board in proper position to receive the bumper of the advancing truck, to watch the board and the bumper, and he was unable at the same time to watch the rollers underneath the crate. It was shown that the action of the roller which injured plaintiff could have been prevented by nailing on the rear end of the crate at the bottom two boards in the form of a square to catch the roller as it worked out from underneath the crate.

Defendant assigns reversible error upon the giving of plaintiff's instruction No. 1, which is, in substance, as follows:

"The court instructs the jury that, if you find from the evidence that the defendant ordered plaintiff to hold a board, between the crate and the truck mentioned in evidence, that said crate was resting on rollers, that plaintiff was required to work in such close proximity to said rollers that by reason thereof said rollers were apt to injure him when said crate was pushed by said truck, that said rollers could have been secured so as to have prevented them from coming in contact with ...