Anderson v. Orscheln Bros. Truck Lines, Inc.
| Decision Date | 12 July 1965 |
| Docket Number | No. 1,No. 50880,50880,1 |
| Citation | 393 S.W.2d 452 |
| Parties | Walter ANDERSON, Original Plaintiff, Oliver F. Erbs, Executor Estate of Walter Anderson, Deceased, Later Substituted as Party Plaintiff, Respondent, v. ORSCHELN BROS. TRUCK LINES, INC., Appellant |
| Court | Missouri Supreme Court |
Jerome M. Steiner, Clayton, and Oliver F. Erbs, Kirkwood, John S. Marsalek, St. Louis, of counsel, for plaintiff-respondent.
Chapman, Chapman & Litz, Wilton D. Chapman, Thomas W. Chapman, Arthur Litz, St. Louis, for defendant-appellant.
HOUSER, Commissioner.
This is a damage suit for personal injuries sustained by Walter Anderson at the freight station of Orscheln Bros. Truck Lines, Inc., in St. Louis. Submitted on the theory of res ipsa loquitur, there was a jury verdict for plaintiff for $95,000. The truck line has appealed from the judgment entered upon the verdict. We have jurisdiction because the amount involved is in excess of $15,000.
Defendant's first point on appeal is that Anderson failed to prove (a) that he was injured by an instrumentality in the exclusive control of defendant and (b) that defendant was in a superior position to know what caused the instrumentality to fall. This requires a statement of the evidence, which we relate in a manner favorable to Anderson, the prevailing party, accepting the evidence in his favor as true and rejecting all contrary evidence and inferences.
Anderson was seriously injured while attempting to climb up onto the platform of the dock to unload his employer's trailer. A 150-pound steel cylindrical tank 4 or 5 feet long, 8 or 9 inches in diameter, fell in his direction, causing him to release his hold as he was ascending and to fall backwards onto the ground, where the tank struck Anderson's body.
Defendant's freight station consists of a warehouse and dock 200 to 300 feet long, extending north and south on 14th Street. The accident occurred on the west side of the dock. Along that side there are 14 doors, each 10-12 feet wide. Near the edge of the platform or floor of the dock there are a number of upright steel U-beams or posts. Some support the roof. Others serve as channels for the doors. The dock platform is approximately 49 inches higher than the surrounding areaway, on which tractor-trailer units drive in delivering merchandise to the freight station. This areaway is part of defendant's premises. Along the main aisle of the dock, 10 or 12 feet back from the doors, defendant's employees move freight from one trailer to another. On the dock for use in unloading trailers defendant provides various kinds of equipment: hand trucks, wheel trucks, fork lifters, and cylindrical 'oxygen' tanks such as the one that injured Anderson. These cylinders, which are used by defendant because of their greater strength, are placed under unusually heavy objects and used as rollers in bringing heavy, bulky merchandise from the trailers into the warehouse. Ordinary pipe would collapse under heavy loads; a small roller does not roll as readily as a large one in moving heavy objects. The cylinder in question was located and kept around the area of doors 11 and 12. At this particular location defendant transferred heavy objects, loads of steel, etc., because the terrain and height of the dock platform were more favorable. In moving heavy objects it is important not to have any 'rise' between the dock and the trailer.
When a tractor-trailer operator comes onto the premises to deliver merchandise he parks, goes to defendant's office, which is located at the north end of the dock. There he gets his tickets or invoices checked; gets 'his bills okayed.' Then he backs his trailer in to an open dock, unloads, has one of defendant's checkers count the packages or merchandise delivered and check the merchandise for damage, sign the ticket. Defendant's receiving clerk then issues him a receipt. Defendant would not 'accept anything from anybody without that bill having been okayed by the freight clerk.'
When necessary to unload an object of great weight the trucker asks defendant's employees to bring a cylinder. Defendant's employee then goes and gets the necessary cylinders, brings them out for use and places them in position under the heavy object. Defendant's employees and the tractor-trailer operator, working together, then roll the heavy object from the trailer into the warehouse. Sometimes the merchandise is left standing on the tanks for later transfer from warehouse to trailer. At other times the cylinders are withdrawn by defendant's employees and restored to their storage places by defendant's employees--not by the tractor-trailer operators. The latter do not go get the equipment or take it back after its use. Defendant's employees 'put the equipment away.' Defendant's receiving clerk 'takes care of that.' It is 'the practice of Orscheln Brothers' employees exclusively to use the equipment there for loading and unloading.' After a cylinder is used it is normally 'set in the area' in an out-of-the-way place, normally and customarily in the inside or outside (in the hollow) of a U-beam.
On the day in question the terminal manager was in charge of the dock. He had supervision and control over defendant's employees, of which about 30 were on duty at the terminal. Anderson, a tractor-trailer operator employed by Luecking Transfer Company, arrived at defendant's terminal at 3 or 3:30 p.m. for the purpose of delivering some merchandise. He found a line of vehicles waiting to get a space in which to unload. After awaiting his turn he found a space--an aisle about 3 feet wide, which gave him sufficient room to deposit the small amount of freight he was delivering--at door 11. Three fourths of the space was full of freight. It was a busy dock, congested with a great deal of merchandise which had accumulated that day. There was a constant moving of the merchandise across the aisles between the bays and in the main aisle that ran the full length of the terminal.
Anderson backed his trailer in to the dock, parked it with its rear end flush against the edge of the dock. He applied his brakes, placed a wooden block under the left rear wheel to keep the equipment from moving forward, and then, facing the dock, attempted to get from the ground up onto the dock platform, from the driver's side of the trailer. Except for the stairway located at the north end of the dock, which leads to the office, defendant provided no means for the drivers to mount the dock. Anderson tried to mount the dock in the same manner that he and the other drivers always did, i.e., throw themselves on the dock by vaulting, jumping, or climbing up on their equipment the best way they could, and then climbing from the equipment to the dock--the only way of getting up on the dock without using the steps at the end of the dock. Anderson looked up on the dock, did not see anything coming at him, put his left foot on the tire of the left rear wheel of the trailer, grabbed hold of the back end of his trailer with his left hand, threw his right foot up toward the dock, grabbed the U-beam to his right, at a point about a foot or two above the dock platform (he was able to get a good firm grasp on the post with his fingers and thumb), and started to pull himself up on the dock. When his right foot had moved to a position about 2/3 of the way between the ground and the level of the platform of the dock he looked up and saw this oxygen cylinder coming at him, not over a foot away from his face, falling at him at a 25-degree angle, with the top of the tank toward the south and the bottom to the north. The cylinder 'was on the edge of the dock falling toward' him. He was then half-way up over the dock. Afraid that the cylinder would hit him in the head, Anderson turned loose of the post with his right hand. The cylinder kept coming at him. He turned loose with his left hand and started 'fighting the tank' as he fell backwards, trying to push it away. He fell on his back on the ground and the cylinder fell on him. Anderson did not see the cylinder until it was 1 foot away from his face. At no time while attempting to mount the dock did Anderson touch the cylinder. Anderson saw no one in the proximity of the place he was about to unload other than defendant's employees. He saw some of them while he was on the ground. They were going up and down the main aisle on the dock, 10 or 12 feet back from the door, in the middle of the warehouse. Photographs of the place where the accident happened show a crack in the concrete floor of the platform. The crack runs from the post to the edge of the platform. There is some cracking, some broken pieces of concrete, at the edge of the dock. If the dock was in the condition shown by the photographs on the date of the accident, a cylinder standing on the cracks would not have stood firmly. To stand the cylinders up on end on the dock is seldom done because of the danger of falling over; it is 'too dangerous.' Cylinders have been seen sitting up on the dock, although rarely.
Defendant's general sales manager 'saw it happen.' He was standing on the dock, 15 feet from the edge, about the center of the dock, south of the U-beam. While he could not see the tank from his position, he confirmed that there was a cylinder; that it fell on Anderson, as he was falling back, following an attempt on his part to reach for the post; that 'when he went back the tank came out of the post with him.' He saw no tank passing or moving between him and Anderson; saw no one carrying a tank or drop a tank, and saw no one rolling a tank there.
On the matter of control over the instrumentality: Defendant argues that nowhere in the evidence is it shown that the cylinder was in the exclusive control of defendant; that any other truck driver having access to the loading dock 'could have tampered with the cylinder, making it fall * * *.' To the contrary,...
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