Brann v. Hydraulic Press Brick Co.

• Citation: 288 S.W. 941
• Decision Date: 07 December 1926
• Docket Number: No. 19554.,19554.
• Parties: BRANN v. HYDRAULIC PRESS BRICK CO.
• Court: Court of Appeal of Missouri (US)

288 S.W. 941

BRANN v. HYDRAULIC PRESS BRICK CO.

No. 19554.

St Louis Court of Appeals. Missouri.

December 7, 1926.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by George Brann against the Hydraulic Press Brick Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Eliot, Blayney, Bedal & Eliot, of St. Louis, for appellant.

Charles P. Comer, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff on June 28, 1922, while he was in the employ of defendant as a laborer, and was engaged in moving bricks from a wagon in obedience to an order that had been given to him. The verdict of the jury was for plaintiff in the sum of $1,271, and judgment was duly rendered thereon, from which defendant has appealed.

The petition charged, first, that defendant negligently and carelessly loaded a wagon with bricks piled in an uneven manner, thereby making plaintiff's place to work unsafe and dangerous in unloading them; and, second, that the foreman, although he knew of such unsafe and dangerous condition, negligently and carelessly ordered plaintiff to remove the sideboard of the wagon. The answer was a general denial, coupled with a plea of contributory negligence, in that the plaintiff knew, or by the exercise of ordinary care would have known, that it was dangerous to remove the sideboard from the wagon. The reply was conventional.

The evidence disclosed that plaintiff, 45 years of age, had, been in the employ of defendant as a laborer for two years. On the day in question he was ordered by his foreman, named Kurber, to assist in unloading heavy paving bricks from wagons of defendant onto flat cars of the United Railways Company. One Whitaker, a fellow employé, was associated with plaintiff in this work. Ordinarily the bricks were placed in the wagon in even rows and were unloaded with tongs, by means of which from five to seven bricks could be lifted at one time from the wagon onto the fiat car. In case the bricks were not stacked in even rows, the custom was for one man to stand in the wagon and toss the bricks out to another employé, who stood on the floor of the car,

When plaintiff and Whitaker were first ordered by Kurber to perform this particular task, Kurber informed them that it would be their duty to obey the instructions of a certain party whom they would find at the place of work. When the flat cars of the United Railways Company arrived, this party, who was an inspector, came with them. Three or four wagons had been unloaded without incident by means of the tongs. When the next wagon arrived, plaintiff remarked to Whitaker that it appeared as though the bricks had been thrown into it with a shovel. They began to unload this wagon by tossing the bricks out, when the inspector, whose directions they had been asked to obey, ordered them to remove the sideboard from the wagon and use the tongs to unload, the bricks. Plaintiff suggested to him that, if the sideboard should be removed, the bricks which were leaning against it would fall out of the wagon; but the inspector was insistent that such method be employed. Whitaker thereupon stood upon the doubletrees, while plaintiff assumed a position on the ground, at the rear and between the wheels Of the wagon. As soon as the sideboard was lifted by plaintiff and Whitaker in obedience to the order, the bricks started falling out and began to hit plaintiff on the stomach and feet. He thereupon released his hold on the sideboard, as also did Whitaker immediately afterwards, whereupon the end of the sideboard struck plaintiff, knocking him to the ground and injuring him.

Defendant first assigns error in the refusal of its peremptory instruction in the nature of a demurrer to the evidence, requested, at the close of the entire case. It argues that there was no evidence identifying the United Railways Company's inspector as the man from whom plaintiff was directed by Kurber to take orders, and that, even assuming that the bricks were piled in the wagon unevenly, such fact did not constitute an unsafe place in which to work. There is also the further contention that plaintiff anticipated the exact occurrence, and in spite of it went ahead, or, in other words, that he was guilty of contributory negligence as a matter of law in obeying the inspector's order.

When we give plaintiff the benefit (as we must) of all evidence adduced in his favor, together with all reasonable inferences of fact to be drawn therefrom, it becomes apparent that there is no merit in defendant's contention that the United Railways Company's inspector was not shown to have been the man from whom plaintiff was directed to take orders. Kurber ordered plaintiff to assist in loading certain flat cars, and told him that the man whose orders he should obey would be found with them, and in fact it developed that, when the flat cars were brought in, the inspector was on them. So far as the evidence discloses, he was the only man present at the scene of work, except plaintiff's fellow laborers; and, furthermore, the inspector himself, testifying as a witness for defendant, admitted that he was stationed at that particular point on the day in question.

In support of its contention that the piling of the bricks in the wagon' in an uneven manner did not constitute a failure on its part to exercise ordinary care to furnish plaintiff a reasonably safe place in which to work in unloading them, defendant argues that plaintiff was working in the open in a public street; that the wagon was standing perfectly still; that the bricks would not fall out unless the sideboard was removed; and that such situation did not create an unsafe place in which to work, within the meaning of the doctrine. This is a somewhat unusual theory. There is no dispute but that it was plaintiff's duty to unload the bricks from this particular wagon, and the fact that the wagon was standing still in an open street did not render it any the less plaintiff's place of work. Furthermore, it was shown that the fact that the bricks were unevenly piled rendered the unloading of them dangerous when the sideboard was removed, and that, if they had been stacked evenly, they could not have fallen out of the wagon, even though the sideboard had been lifted. We conclude, therefore, that there was substantial evidence in support of both assignments of negligence in plaintiff's petition.

Plaintiff was thus entitled to go to the jury, unless he was guilty of contributory negligence as a matter of law. Upon this issue defendant stresses the fact that plaintiff knew that some of the bricks would fall if the sideboard were removed,, and in fact so advised the inspector when the order was first given. However...