Bobos v. Krey Packing Co.

• Decision Date: 24 May 1927
• Docket Number: 26244
• Citation: 296 S.W. 157,317 Mo. 108
• Parties: Mike Bobos, Jr., A Minor, By His Next Friend, Gustav E. Enders, Appellant, v. Krey Packing Company
• Court: Missouri Supreme Court

296 S.W. 157

317 Mo. 108

Mike Bobos, Jr., A Minor, By His Next Friend, Gustav E. Enders, Appellant, v. Krey Packing Company

No. 26244

Supreme Court of Missouri

May 24, 1927

Appeal from Circuit Court of City of St. Louis; Hon. Claude O Pearcy, Judge.

Reversed and remanded.

Foristel Mudd, Hezel & Habernicht for appellant.

(1) Instruction 4 wholly disregarded the grounds of contributory negligence charged upon the plaintiff in defendant's answer, but told the jury that if plaintiff could recover they must find "that the plaintiff did not directly contribute to such accident by any negligence or want of prudence or lack of ordinary care on his part, and if the jury shall find from the evidence that the injury was caused in any degree by want of ordinary care or caution on the part of plaintiff, then your verdict must be for the defendant." This was error and was prejudicial to defendant's case. Carr v. City of St. Joseph, 225 S.W. 922; Benjamin v. Railroad, 245 Mo. 598; Beave v. Transit Co., 212 Mo. 331; Harrington v Dunham, 273 Mo. 414; Miller v. Engle, 185 Mo.App. 558; Hereford v. Railways Co., 220 S.W. 899; Malone v. Railways Co., 232 S.W. 782; Hill v. Johnson, 249 S.W. 138; Tri State Fruit Growers' Association v. Railway Co., 264 S.W. 445. (2) Defendant's instruction numbered 5 erroneously defines the term "scope of duty" and then directs a verdict for the defendant "unless you further find that said driver was acting within the scope of his employment as defined in this instruction." Garretson v. Duenckel, 50 Mo. 104; Wahl v. Transit Co., 203 Mo. 266; Whiteaker v. Railways Co., 252 Mo. 459; Houck v. Rys. Co., 116 Mo.App. 570; Shamp v. Lambert, 142 Mo.App. 573; Galba v. Payne, 253 S.W. 137. (3) The court erred in giving Instruction 6 on behalf of defendant submitting to the jury the theory of accident as the cause of plaintiff's injuries. The evidence showed clearly that the plaintiff's injuries were caused either by defendant's negligence or by the plaintiff's negligence, or by the combined negligence of both plaintiff and defendant. The cause of plaintiff's injury was not unknown. Beave v. Transit Co., 212 Mo. 355; Beard v. Railroad Co., 272 Mo. 142; Zeis v. Brewing Assn, 205 Mo. 651; Turnbow v. Dunham, 272 Mo. 53; Simon v. Rys. Co., 178 S.W. 449; Wise v. Transit Co., 198 Mo. 546; Felver v. Cen. Ry. Co., 216 Mo. 195; Lamar v. Salt Co., 242 S.W. 691; Nehring v. Stationery Co., 191 S.W. 1054; Head v. Lumber Co., 281 S.W. 441.

Bryan, Williams & Cave for respondent.

(1) Appellant's motion for new trial is insufficient to authorize this court to review alleged error in the instructions given at the request of defendant. Secs. 4029, 1267, 1512, R. S. 1919; Whittlesley's Missouri Practice, sec. 383, p. 473; Wampler v. Railroad Co., 269 Mo. 464; State v. Rowe & Sanders, 271 Mo. 88; Sweet v. Maupin, 65 Mo. 65; Carver v. Thornhill, 53 Mo. 283; Maplegreen Realty Co. v. Mississippi Valley Trust Co., 237 Mo. 350; Polski v. City of St. Louis, 264 Mo. 458. (2) Plaintiff's petition fails to state a cause of action. (a) Because it appears upon its face that at the time plaintiff was injured the driver of defendant's truck was not acting within the scope of his employment. Barker v. Dairymen's Milk Products Co., 205 Ala. 470; Kalmich v. White, 95 Conn. 568; Waller v. Southern Ice Co., 144 Ga. 695; Collins v. Baking & Ice Cream Co., 226 Ill.App. 124; Scott v. Coal Co., 153 Ill.App. 103; Collins v. Chicago, 187 Ill.App. 30; Doughert v. Ry. Co., 137 Iowa 257; Driscoll v. Scanlon, 165 Mass. 348; Hughes v. Storage & Transfer Co., 269 Pa. 222; Seidl v. Knop, 174 Wis. 397; Walker v. Fuller, 223 Mass. 566; Dover v. Mayes Mfg. Co., 157 N.C. 324; Christie v. Mitchell, 93 W.Va. 200; Rolfe v. Hewitt, 227 N.Y. 86; Goldberg v. Condensed Milk Co., 227 N.Y. 465; Fiocco v. Carver, 234 N.Y. 219; Gruber v. Transfer Co., 165 P. 491; McQueen v. Storage Co., 166 P. 626; Fry v. Public Utilities Co., 183 N.C. 281; Nelson v. Traction Co., 276 Pa. St. 178; Perrin v. Lumber Co., 276 Pa. St. 8; Lafferty v. Armour, 272 Pa. St. 588; Higbee v. Jackson, 101 Ohio St. 75; Mahler v. Stott, 129 Mich. 614; Schulwitz v. Lumber Co., 126 Mich. 559; Wilkins v. Coal Co., 79 N.H. 335; Foster Herbert Cut Stone Co. v. Pugh, 115 Tenn. 688; Zampella v. Fitzhenry, 97 N. J. L. 517; Kiernan v. Ice Co., 74 N. J. L. 175; Karas v. Burns Bros., 94 N. J. L. 59; Gamble v. Uncle Sam Oil Co., 100 Kan. 74; Armstrong v. Sumne & Ratterman Co., 278 S.W. 111; Stipetich v. Stove Co., 218 S.W. 964; Anderson v. Nagel, 214 Mo.App. 124; Guthrie v. Holmes, 272 Mo. 215. (b) Because, even though it be conceded for the purpose of argument that the driver of defendant's truck was acting within the scope of his employment when plaintiff was injured, there is no allegation that the driver willfully, wantonly or recklessly injured plaintiff, which was the only duty which this defendant owed the plaintiff. Lafferty v. Armour, 272 Pa. 588; Perrin v. Glasport Lumber Co., 276 Pa. 8; Christie v. Mitchell, 93 W.Va. 200; Higbee v. Jackson, 101 Ohio St. 75; Oatman v. Ry. Co., 304 Mo. 38; Stipetich v. Stove Co., 218 S.W. 964. (c) Because, further conceding that under the humanitarian rule, the servant's failure to use ordinary care may subject the master to liability for injuries to the servant's invitee, the petition does not contain sufficient allegations to state a cause of action under this doctrine. Oatman v. Ry. Co., 304 Mo. 38; Roberts v. Southern Pac. Railroad, 166 Mo.App. 639; Stewart v. Mo. Pac. Railroad, 308 Mo. 383; Banks v. Morris & Co., 302 Mo. 254; State ex rel. v. Trimble, 300 Mo. 92. (3) The judgment should be affirmed because there was insufficient evidence to support a verdict in favor of plaintiff. Oatman v. St. Louis Southwestern Ry. Co., 304 Mo. 38; State ex rel. v. Trimble, 300 Mo. 92; Banks v. Morris & Co., 302 Mo. 254; Straub v. Laclede Gas Light Co., 287 S.W. 1061; Stewart v. Mo. Pac. Railroad, 308 Mo. 383. (4) The giving of defendant's Instruction 4, if error, was harmless error and would not warrant this court in reversing the judgment. State ex. rel. v. Allen, 291 Mo. 206; Jablonowski v. Modern Cap Mfg. Co., 251 S.W. 477; Roman v. King, 268 S.W. 414; Leimbach v. United Railways Co., 206 Mo.App. 179; Riley v. City of Independence, 258 Mo. 671, 683; Laycock v. United Railways Co., 280 Mo. 344. (5) Defendant's Instruction 5, although erroneous as an abstract statement of law, was correct in its application to the particular facts of this case. Cases cited above. (6) The giving of defendant's Instruction 6 did not constitute reversible error, although the instruction might properly have been refused. Simon v. St. Ry. Co., 178 S.W. 449; Gunn v. United Railways Co., 220 Mo. 517.

OPINION

Ragland, J.

Action for personal injuries alleged to have been negligently caused by defendant.

On the 29th day of October, 1920, one Reinert, a servant of the defendant corporation, was, pursuant to his employment, driving one of defendant's electric trucks eastwardly along Bremen Avenue in the city of St. Louis, hauling the products of its main plant at 20th and Bremen to its cold-storage plant at Broadway and Bremen. The driver sat in a cab which was open on both sides and which was about four and a half feet from the ground. On the side of the truck there was a step, "a small step like on a buggy, round and flat and made out of iron." There was also a handhold on the side of the cab -- "something like on a street car." As the truck was proceeding eastwardly, as just stated, plaintiff, a boy about fifteen years of age, was walking along the south side of Bremen Avenue, going in the same direction but some distance in advance of the truck. The truck was moving at the rate of six or eight miles an hour and overtook him. As to what then occurred plaintiff testified:

"When I saw this truck I turned around and walked out in the street and held up my hand for the driver to stop. At that time he was about six or seven feet, maybe more, west of me, coming towards me. The driver slowed down. As I held out my hand the truck was coming down -- it slowed down and came to a stop. I put my foot on the truck and got hold of that rail and wanted to get on, when the truck started suddenly and I was thrown under the wheels. When the truck stopped it was right opposite me, right in front of me, when it came to a stop. . . . After the machine came to a stop I grabbed hold and put my foot on the step, and I was getting on when the truck started up, pulling myself up. Then the truck started suddenly. I cannot say exactly which hand I had hold of the hand bar; I think it was the right hand. When the truck started up my foot slipped off that there thing and went under the front wheel and it passed over me right here. When the truck started up all my weight was on the step. I couldn't say where my other leg was or how high I had gotten that. When the truck started up my foot slipped off and I went down together."

Plaintiff's testimony was in the main corroborated by that of Reinert, the driver. The latter testified in part:

"When I saw this boy come out into the street I just kept running. I did not bring my car to a stop at that present time. I did not bring it to a full stop when he caught hold of it; I think after he had hold I stopped, and when he raised himself up, I think, I throwed the power on again, because I thought it was safe."

Plaintiff sustained severe and permanent injuries.

Defendant's witnesses testified that the truck never stopped or even slowed down, but that plaintiff ran after it, and upon overtaking it grasped the handhold and endeavored to pull himself up into the cab. Some of them said plaintiff stepped up on the hub of the front wheel; some that his foot slipped off the step; and others that he entirely...