Chulick v. American Car & Foundry Co.

• Decision Date: 04 December 1917
• Docket Number: No. 14808.,14808.
• Citation: 199 S.W. 437
• Parties: CHULICK v. AMERICAN CAR & FOUNDRY CO.
• Court: Missouri Court of Appeals

199 S.W. 437

CHULICK v. AMERICAN CAR & FOUNDRY CO.

No. 14808.

St. Louis Court of Appeals. Missouri.

December 4, 1917.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

"Not to be officially published."

Action by Steve Chulick, an infant, by Alexander Chulick, next friend, against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Watts, Gentry & Lee, of St. Louis, for appellant. Mortimer B. Levy, Adolph Abbey, and Fauntleroy, Cullen & Hay, all of St. Louis, for respondent.

ALLEN, J.

This is an action to recover for personal injuries sustained by plaintiff while in the employ of the defendant corporation as its servant. The trial below resulted in a verdict and judgment for plaintiff, and defendant prosecutes the appeal.

The defendant is engaged in the manufacturing business, operating a factory in the city of St. Louis. On July 13, 1913, plaintiff, then 17 years of age, was in defendant's employ in a building or shed, referred to in the evidence as "the planing mill," and engaged in piling lumber near a "narrow gauge" track which defendant maintained in the building. Plaintiff had been in defendant's employ and engaged in this work for but four days prior to his injury. It appears that a saw was operated a few feet, perhaps 8 or 10, from this track, and that plaintiff's duties required him to take the sawed pieces, which were passed to him by another boy, and pile them between the saw and the track, but quite close to the latter. As to plaintiff's position when engaged in this work, the testimony of a witness is that "he stood at the track, and part of the time on the track." When asked if he carried the lumber from the saw, plaintiff said: "No, I just stand and pile it up to the pile. * * * He (the other boy) gave them to me and I piled them up." Upon this track stood a truck, some 15 or 20 feet distant from plaintiff's place of work, and the evidence is that this truck had remained stationary at that point during the four days in which plaintiff was so employed prior to his injury.

It appears that the foreman over plaintiff and those engaged with him in the work mentioned was one Sidener. On the day of plaintiff's injury a workman named Pruitt, who was under another foreman, one Doerr, was ordered by the latter to move, or to load and move, this truck along the track at or upon which plaintiff was working. And Pruitt and a fellow laborer proceeded to do this, moving the loaded truck by getting behind it and pushing it along the track. In this manner it was run upon plaintiff while engaged in his work, and while his back was turned toward it, seriously injuring him.

The truck, it seems, was 6 or 7 feet in length and about 4 or 5 feet wide. Pruitt testified that when it was moved the lumber thereon was piled nearly as high as his head. It appears that Pruitt's foreman, in giving the order mentioned, gave no order or direction to Pruitt or to his colaborer touching any warning to plaintiff of the movement of the truck, and neither Pruitt nor his fellow workman gave any warning. Pruitt, in testifying, said:

"I looked ahead of me as far down the sides as I could see, and I couldn't see nobody down on that side, and the side the boy got hurt on there was lumber stacked up all along on that side, so I could not see anybody on that side at all."

Plaintiff testified, in substance, that he saw the truck on the first day when he went to work, standing in the position above mentioned; that he had not seen it moved while he was there, and did not know that it was being moved on the occasion in question until he was struck by it from behind and injured.

I. It is argued that the petition wholly fails to state a cause of action, though it was not attacked below other than by an objection to the introduction of evidence, in the nature of a demurrer ore tenus, at the opening of the trial. The argument advanced in this connection is based upon the fact that the allegation of the petition respecting the setting in motion of the truck, without warning, is that this was done "by the defendant, its agents, servants, or employés"; and it is urged that this does not affirmatively charge that defendant did the act, nor that it was done by any agent or servant of defendant for whose negligence defendant would be responsible. But after verdict and judgment the petition is not to be held vulnerable to attack if by reasonable implication or intendment it may be said to state facts sufficient to constitute a cause of action; and it is entirely clear that when tested by this rule it is sufficient to support the judgment.

II. Appellant's main contention is directed to the alleged error of the trial court in refusing to peremptorily direct a verdict for plaintiff. It is argued, in the first place, that the circumstances appearing in evidence were not such as to make it incumbent upon defendant to give plaintiff a warning before moving the truck; that plaintiff's duties did not require him to be upon the track, and that for aught that appears he may have suddenly stepped in front of the truck as it was being moved....