Bollmeyer v. Eagle Mill & Elevator Co.

• Decision Date: 01 October 1918
• Docket Number: No. 12842.,12842.
• Citation: 206 S.W. 917
• Parties: BOLLMEYER v. EAGLE MILL & ELEVATOR CO.
• Court: Missouri Court of Appeals

206 S.W. 917

BOLLMEYER v. EAGLE MILL & ELEVATOR CO.

No. 12842.

Kansas City Court of Appeals. Missouri.

October 1, 1918.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

"Not to be officially published."

Action by William P. Bollmeyer against the Eagle Mill & Elevator Company. From judgment for defendant, plaintiff appeals. Reversed and remanded.

Aull & Aull, of Lexington, for appellant. Charles Lyons, of Lexington, for respondent.

BLAND, J.

This is an action for personal injuries. Defendant having recovered a verdict and judgment, plaintiff has appealed. As there were erroneous instructions submitted at the request of the defendant, as hereinafter pointed out, the case must be reversed and remanded, but the defendant claims that the verdict in any event was for the right party because, as defendant says, plaintiff was guilty of contributory negligence as a matter of law.

We will take up this contention of defendant first. Plaintiff was injured on April 28, 1915, while in the employ of defendant as a teamster engaged in transferring, with a wagon and team belonging to defendant, baled prairie hay of defendant from a car on a sidetrack at Higginsville, Mo., to the place of business of one Borland in said city, the purchaser of said hay. The petition alleges that plaintiff's injury was the result of the negligence of defendant in providing him with a wagon that was defective, unsuitable, and unsafe, and not adapted to be used for the purposes mentioned; that the horses furnished him were fractious, spirited, and disposed to run away; and in ordering him to put on "a good big load" under the circumstances. The answer consists of a general denial and a plea of contributory negligence in which defendant alleges that plaintiff overloaded the wagon, and was careless and negligent in loading the wagon, and that plaintiff was careless and negligent in driving the wagon that had been overloaded so that the hay fell off, frightening the horses, causing them to run away.

The facts show that plaintiff had worked on a farm for some time, and had worked for the defendant as a teamster about two years prior to the accident; that he usually drove a wagon described as a mill wagon. This was an ordinary farm wagon with solid bed, and had a high seat and brake. On the day of the accident the mill wagon was being used for another purpose, and defendant's manager directed plaintiff to use a wagon described as a rock or dump wagon. Plaintiff said he refused to use this wagon because it had no brake and no seat upon which to ride. Defendant's manager explained why plaintiff could not have the mill wagon, and directed plaintiff to use the rock wagon, and "to load up a good big load of prairie bay and haul it to Charlie Borland."

The bed of the rock wagon consisted of boards laid on the bottom with wings on both sides resting against standards and with end gates at both ends; these boards, wings, and gates were not securely fastened, but were loose. Plaintiff knew that the boards were loose in the wagon, but he did not know there were no braces to the wings, or no cleats on the bottom boards. He thought the wagon was safe so he loaded "a good big load" of prairie hay upon it and started to drive to Borland's, his place of destination. He had hauled hay on this wagon before, but how often is not shown in the evidence. The bales were about 30 inches long and 14 inches wide. They weighed 49 pounds each. Plaintiff placed 40 bales on the wagon. The first layer of bales was placed lengthwise in the wagon, 2 bales wide; this left about 4 inches between the bales and the wings—that is, 4 inches altogether, and not 4 inches on each side. When the bales thus placed reached the top of the wings, he changed the placing of the bales, so that instead of placing them lengthwise in the wagon he placed 2 bales, end to end, crosswise of the wagon. They were stacked 5 or 0 bales above the wagon bed to a height of from 12 to 14 feet. Plaintiff put 3 bales in the center and on top of the load lengthwise of the wagon to bind the load. He sat in the middle of the load and proceeded slowly to his place of destination. When he reached a switch track, a short distance from the car, the wagon wheel struck the rail a glancing blow, and the wagon bed, not being sufficiently braced, gave way. Plaintiff testified that the first thing that happened was that he felt the bottom and sides of the bed giving away; that the sides or the wings of the bed "flopped down," flopped away from the standards to one side; "they fell out." After the sides "flopped down" and the hay fell, two or three of the boards, constituting the bottom of the wagon bed, and the end gates, came out. The load split, causing the bales to fall, some of them on the horses, and precipitated plaintiff to the ground. The horses started to run away, plaintiff holding onto the lines. After going a short distance holding the lines his foot caught in between the wagon and another railroad track, which resulted in his severe injury.

Plaintiff had driven the team during the entire time that he had been in the employ of the defendant and knew its disposition.

It is defendant's contention that the wagon was a simple appliance of which plaintiff had perfect knowledge; that he fell off by reason of his having placed too great a load upon the wagon, and by reason of the fact, as defendant says, that plaintiff negligently loaded the bales on the wagon crosswise, so...