Anderson v. Asphalt Distributing Co.

• Decision Date: 03 September 1932
• Docket Number: No. 30307.,30307.
• Citation: 55 S.W.2d 688
• Parties: ANDERSON v. ASPHALT DISTRIBUTING CO.
• Court: Missouri Supreme Court

55 S.W.2d 688

ANDERSON v. ASPHALT DISTRIBUTING CO.

No. 30307.

Supreme Court of Missouri, Division No. 1.

September 3, 1932.

Motion for Rehearing Overruled October 22, 1932.

Motion to Transfer to Banc Overruled December 20, 1932.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

Action by Eva Rhudy Anderson against the Asphalt Distributing Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Leahy, Saunders & Walther and J. L. London, all of St. Louis, for appellant.

Mark D. Eagleton and Frank P. Aschemeyer, both of St. Louis, for respondent.

FERGUSON, C.

The plaintiff herein, as the widow of Orval Rhudy, deceased, brought this action against the Asphalt Distributing Company for damages on account of the death of Rhudy which occurred when an automobile truck owned and operated by defendant company, upon which Rhudy was riding while engaged in his work as an employee of defendant, was struck by a railroad train at the crossing of a highway over the railroad track. Plaintiff alleged that Rhudy's death was caused by the negligence of the defendant company. The verdict of the jury was for plaintiff in the sum of $10,000, and from the judgment entered thereon defendant appealed.

Appellant company was engaged in the business of selling and distributing asphalt. The asphalt was hauled in liquid form from defendant's plant to designated points in automobile tank trucks, where it was distributed or unloaded by means of a pump attached at or near the rear of the truck. When a tank of the liquid asphalt was to be delivered or distributed, a helper was assigned to the truck who accompanied the regular driver and at the point of distribution or unloading operated the pump or otherwise assisted in the work necessary to be done in that connection. In going to the point of delivery the helper rode in the cab with the driver. When the operation of distributing or unloading with the pump was begun, the helper occupied a seat provided at the rear of the truck where he could "handle the lever." Defendant operated a number of these trucks. The plant and the trucks were in charge of a superintendent by the name of Osenton. Appellant employed an automobile mechanic, Robert Mauzy, whose duty it was to keep the "trucks in order" and "make adjustments and repairs on the trucks and equipment." These repairs and adjustments, however, were made only upon the order of the superintendent. Truck drivers were required to report any defects discovered in the trucks or equipment to the superintendent, who, if he deemed it necessary or needful, would order the mechanic, Mauzy, to make repairs. The tank truck involved in the collision in which Rhudy was killed was a Packard truck described by the witnesses as an old truck which had been in use for several years. The weight of the truck was placed at about five tons. It was 23 to 25 feet in length and a "cab" was provided for the driver. This cab was not inclosed, except at the back there was a canvas curtain, but the sides were open without doors or shutters. The testimony is uncontradicted that at the time of the collision and for a long time prior thereto the emergency brake on this truck was inoperative and useless, which was well known to defendant. As a witness for plaintiff, the mechanic, Mauzy, testified that the truck was equipped with "the necessary levers for the emergency brake but there was no brake lining in the shoes," and "that there was no braking surface. It was the same as if there were no emergency brakes on it at all * * * the operation of the lever would have no effect on stopping the truck"; that he "frequently" and at intervals over a period of several months prior to this accident spoke to the superintendent, Osenton, "about putting emergency brakes on this truck" and "told him they should be on there," but "Osenton objected to it every time it was mentioned" and said "there is no use to put them on because they will be torn out again." Mauzy further testified that the service brakes or foot brakes "had been giving so much trouble" that about three weeks before the accident he "had orders to reline them." The foot brakes were relined at that time tested, and "found to be all right," and that they would hold the truck. An employee named Calhoun was the regular driver on this truck. Late in the afternoon of June 22, 1926, this tank truck with a load of 800 gallons of liquid asphalt, making the total weight of truck and load between 7½ and 8 tons, was sent out, with Calhoun driving, to deliver the load of asphalt. Shortly afterwards the truck returned without having made the delivery. The testimony is that Calhoun reported to the superintendent, Osenton, that he had been unable to make delivery of the asphalt; that while going down a hill he had applied the foot brakes, "the brakes had burned," and he couldn't "hold the truck" which, unchecked, ran down the hill striking an obstruction, and "the shaft of the asphalt pump was bent" so that the pump could not be used and the asphalt unloaded. Another driver, who was present at the time the truck returned and the foregoing report was made, testified that he noticed "the brake drum was blue" and that he said to Calhoun, in the presence of Osenton, "your brakes are burned out * * *; any time they get hot enough to turn the drum blue they are burned out." Superintendent Osenton as a witness for defendant admitted that the foot brakes were smoking when Calhoun returned the truck to the plant and reported the incident resulting in the damage to the pump, but said he thought the foot brakes would be all right "when they got through smoking." He gave orders for the repair of the pump but did not order the brakes to be either inspected, adjusted, or repaired. It does not appear that the mechanic was either informed or knew of the burning of the foot brakes. The following morning, June 23, 1926, Rhudy was employed as helper. Osenton testified: "He (Rhudy) had only been employed by the company five minutes or so before he was killed. He was employed as a helper. As a helper he was subject to the orders and directions of the driver while they were away from the plant."

The mechanic reported for work between 6:30 and 7 o'clock that morning and the superintendent ordered him to repair the pump. When the repair on the pump was completed, the superintendent ordered a driver named Dieg to deliver the load which Calhoun had the day before failed to deliver. As stated, Calhoun had theretofore for some time been the regular driver on this truck, and the evidence does not disclose that Dieg had previously driven the truck or that he knew of the condition of the brakes. The superintendent assigned Rhudy, just employed, as helper on the truck. Leaving the plant the truck proceeded west on Ladue Road a distance of 800 feet to the crossing of the road over the single track of the Chicago, Rock Island & Pacific Railway Company, where the truck was struck by train and both Dieg and Rhudy were instantly killed. At that point the railroad track runs in a general north and south direction, and Ladue Road, on which defendant's plant fronts, runs east and west crossing the track. The road was oiled, was between "twenty and twenty-five feet wide from ditch to ditch," and had recently been "retilted" so that it sloped from the center to the sides. The road is "a little down grade all the way" from defendant's plant to a point about 150 feet west of the railroad track. This downgrade was such as to "make a difference in stopping a truck," and the testimony was that this truck traveling west down this grade "with no emergency brake and the foot brakes not functioning would coast until it came to the incline beyond the railroad track." The train came from the south. Along the south side of the road and extending to the railroad right of way was a lumber yard inclosed by a high fence. The view toward the south was further obstructed, to some extent, by lumber stacks and a small office building, so that in traveling west along this road a view of the track to the south was somewhat obscured. However, from a point 75 to 90 feet east of the crossing a train could be seen coming from the south at any point within 450 to 600 feet south of the crossing. No motor or other vehicle was preceding the truck as it traveled the 800 feet west from the plant, and no circumstances appear in the evidence which suggest that any occasion arose to use the brakes until the truck came near the railroad track. The maximum speed of the truck was "15 to 18 or 20 miles an hour on a slight decline that way." The only witness of the collision who testified in this case was Martin Malloy. He testified that he was traveling west on Ladue Road that morning in a Ford roadster; that while he was yet east of defendant's plant, the distance not being stated, the truck came from the plant and proceeded west, and that he came up behind the truck; that part of the truck extended to the left of the center of the road so that the left side of the truck was only 6 to 10 feet from the left side of the road; that the road "was tilted too much to permit the truck to pull further to the right"; that the truck was traveling at a speed of 12 to 15 miles an hour; that he undertook to pass on the left, the truck being at the time 50 or 60 feet east from the crossing; that he ran alongside of the truck for 15 or 20 feet and then his car "skidded into the gutter on the left side" and "came practically to a stop" and he "had to let the truck go on"; that the truck went ahead onto the track and was struck by the train; that when his car skidded he noticed the approach of the train for the first time and the "truck was then 30 or 40 feet from the crossing"; that as he was traveling alongside of the truck, in his attempt to pass it, he saw the driver "working" the emergency brake; that he (the driver) would "work it (the emergency brake) back and let it go and work it back...