Anderson v. Woodward Implement Co.

• Decision Date: 09 March 1953
• Docket Number: No. 43028,No. 1,43028,1
• Citation: 256 S.W.2d 819
• Parties: ANDERSON v. WOODWARD IMPLEMENT CO. et al
• Court: Missouri Supreme Court

Page 819

256 S.W.2d 819

ANDERSON v. WOODWARD IMPLEMENT CO. et al.

No. 43028.

Supreme Court of Missouri, Division No. 1.

March 9, 1953.

Rehearing Denied April 13, 1953.

Sapp & Bear, William H. Sapp and David V. Bear, Columbia, for appellant.

Boyle G. Clark, William H. Becker and Scott O. Wright, Columbia, for respondents, Clark & Becker, Columbia, of counsel.

CONKLING, Judge.

Van Anderson, a minor six years of age, hereinafter called plaintiff, has appealed from an adverse judgment based upon a jury's verdict, in an action wherein plaintiff has sued for $10,000 damages for alleged personal injuries claimed to have resulted from the negligence of the defendants. At the time of the accident the defendant, Harry Ackman, was an employee of defendant, Woodward Implement Company (hereinafter called Woodward) and for his employer had just delivered certain farm machinery by truck to plaintiff's father, Elliott Anderson, at the latter's farm home in Boone County.

Upon this appeal plaintiff contends that the court erred in permitting certain statements by defendants' counsel, and in admitting certain evidence; in the giving and refusal of certain instructions; and in permitting certain cross-examination by defendants' counsel. But, as defendants are here contending that the trial court erred in overruling defendants' motion for a directed verdict at the close of all the evidence, we first consider defendants' contention. Consideration of that question requires a rather full statement of the facts.

It appears from the transcript of the evidence that plaintiff lived with his parents and his nine year old sister at their farm home near Hartsburg; that his grandparents lived directly across the road; that some farm machinery which plaintiff's father had purchased from Woodward was delivered at the Anderson home on September 16, 1950, by Ackman, upon a flat bed truck which was equipped with a winch, drum and half inch steel cable; that the winch and drum were located under the flat deck of the truck near the front; that one end of the cable was fastened to the winch drum which, when rotated, caused the cable to wind upon or unwind from the drum; that the cable ran up through a small slot in the truck bed and over a pulley; that to the end of the cable there was attached a heavy chain and an iron hook; that the winch was connected to and caused to rotate by power from the truck engine; that a lever on the floor of the truck cab placed the winch in gear, and had 'wind,' 'unwind' and 'neutral' positions; that the winch could also be stopped by turning off the motor ignition key or disengaging the truck engine by means of the clutch pedal; that the winch wound up or unwound the cable at a speed of only six feet per minute;

It further appears that the farm machinery was unloaded from the truck some 80 feet behind plaintiff's home by Ackman and plaintiff's father, by using two skid boards from the truck to the ground as ramps; and the winch and cable let the machinery slowly down to the ground. After it was unloaded the cable, chain and hook extended out about 15 feet beyond the back end of the truck and lay in weeds and grass which was 8 to 12 inches tall. The truck bed was about 16 feet long and 3 1/2 feet high. After the unloading, the machinery of the truck, motor, winch, etc., were set in motion by Ackman to wind up the cable on the winch. The plaintiff's father, who had assisted in the unloading, then started walking toward his home. As the latter was entering his yard Ackman called to plaintiff's father, saying, 'I've got the (tractor) operator's manual for you' and 'he (Ackman) was just kinda trotting toward me' from the direction of the truck. Ackman was then about 40 feet from the back of the truck; and at that moment plaintiff screamed and both Ackman and plaintiff's father started running back to the truck and to plaintiff. At the time plaintiff screamed both of plaintiff's hands were 'caught in the hook at the back of the truck and his feet completely off the ground,' and plaintiff's fingers were 'in between the inside of the hook and the (metal) bed' of the truck. Ackman ran to the truck cab and reversed the cable direction. Plaintiff's father grabbed the cable and plaintiff. The reversal of the cable direction released the boy and his father immediately took him to a doctor for the injury to his fingers.

Plaintiff did not testify. Plaintiff's mother, who was in the house, and plaintiff's father both testified that their nine year old daughter was in the house and did not go outdoors until after the plaintiff had screamed. Plaintiff's father testified that until the plaintiff screamed he did not know plaintiff was out there at all; that he had not seen or heard plaintiff 'in that area' from the time the truck drove up until he heard plaintiff scream; that prior to the accident he had not said anything to Ackman about looking out for the children; and that he did not think plaintiff had 'ever seen anything like that (winch and cable) before,' but that plaintiff 'is the average six-year old boy in intellect and experience.'

Plaintiff's grandfather testified that he was working on a fence 41 steps from where the accident occurred, and his attention was first attracted when he heard plaintiff scream; that prior to hearing the scream he had not seen plaintiff 'in the vicinity of the truck' although he was in a position to see who was around or near the truck; and that he first saw plaintiff 'hanging to the back of the truck * * * and his feet was off the ground. * * * I don't know what was holding him there.'

The defendant Ackman (called by defendants) testified that he and plaintiff's father unloaded the machinery from the truck bed to the ground; that after it was unloaded he (Ackman) entered the truck cab and started the machinery winding in the cable; that he left the cab and then got onto the truck bed and plaintiff's father was then on the ground, at the left side of the truck; and he (Arkman) then saw plaintiff back of the truck; that plaintiff picked up the cable as it was being reeled in and pulled back on it; that plaintiff's father was then 8 or 10 feet away; that Ackman told plaintiff that he would get 'splinters in his hand off this steel cable'; that plaintiff 'let the cable go and just picked up the hook'; that plaintiff's nine year old sister was there by plaintiff; that plaintiff's father then 'told the little girl to help him (plaintiff) hold that cable, the chain or hook part'; that he (Ackman) was 'squatted down on the corner of the bed' talking to plaintiff's father 'and that is when I heard this little boy scream and I looked back and he had his hand between the hook and the back end of the bed.'

Ackman further testified: 'Q. Tell me whether or not you had paid any further attention to the children after the time when you told him to let loose of the rope in the presence of his father? A. No, they were just both back there holding to it and I never said no more to them. I figured that it wasn't my place to say too much more to them. Q. I will ask you to state whether at all times, up until the boy's hand became caught, whether his father was standing in the vicinity of the truck? A. Yes, sir, he was close by the truck.' Plaintiff's father and plaintiff's grandfather (E. V. Anderson) and the defendant Ackman were the only three persons who testified they were near or present or that they knew anything at all about how the accident occurred. The testimony of plaintiff's father and grandfather, called as witnesses by plaintiff, is in the above noted respects in conflict with that of defendant Ackman.

We now consider defendants' contention that the court erroneously refused to sustain their motion for a directed verdict made at the close of all the evidence. Defendants seek to invoke the rule that while plaintiff may have the benefit of any evidence offered by defendants which tends to support plaintiff's theory of recovery, that plaintiff may not have the benefit of any of defendants' evidence which is at war with plaintiff's theory of recovery. Trower v Missouri Kan. Tex. R. Co., 347 Mo. 900, 149 S.W.2d 792, 796. Defendants specifically contend that plaintiff may not have the benefit of Ackman's testimony that Ackman saw and knew plaintiff was present and that plaintiff was holding the cable and hook as the cable was being wound up onto the winch; and that Ackman, so knowing, failed to stop the machinery. Defendants assert that Ackman's testimony 'is in conflict with his (plaintiff's) own theory of the case.' Plaintiff's basic theory of his case as pleaded in the petition and submitted to the jury was that defendants were negligent in failing to keep a vigilant outlook for plaintiff, who was in reach of the cable and hook, and that defendants failed to stop the movement of the cable when Ackman saw plaintiff in contact with the cable and hook. Plaintiff's theory of the case is not that plaintiff was not caught in the hook and drawn against the back of the truck and injured. Of necessity plaintiff had to be within 15 feet of the truck to take hold of the cable or hook. All the evidence in the case is that plaintiff was caught in the hook and that he was injured.

The testimony of plaintiff's father and grandfather was that they did not see plaintiff out there and did not know plaintiff was there 'in that area' around or near the truck until they heard plaintiff scream. That testimony sharply conflicted with Ackman's testimony that both the little boy and the little girl were out there, and the plaintiff's father told the little girl to help plaintiff hold the cable. The conflicts of the testimony were for the jury. And the jury resolved the conflicts of the testimony. The mere conflict in the testimony as above noted cannot deprive plaintiff of the benefit of the above set out portion of Ackman's affirmative testimony that Ackman actually saw plaintiff pick up the cable and the...