Compton v. Louis Rich Const. Co.

Decision Date11 October 1926
Docket NumberNo. 25486.,25486.
PartiesCOMPTON v. LOUIS RICH CONST, CO.
CourtMissouri Supreme Court

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Action for personal injuries by Perry Compton against the Louis Rich Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Ralph & Baxton, of Clayton, for appellant.

Taylor, Mayer & Shifrin, of St. Louis, for respondent.

SEDDON, C.

Plaintiff seeks to recover damages for personal injuries alleged to have been occasioned by defendant's negligence. Defendant is a corporation which was engaged in the construction of a concrete roadway or pavement on Manchester road in St. Louis county. Plaintiff was injured on May 15, 1922, at or about noon of that day. Plaintiff alleges in his petition that on said date, and while in the employ of defendant, he was ordered and instructed by a superintendent or foreman of defendant, in charge of and directing plaintiff, to drive a Fordson tractor from defendant's construction camp to a point on said Manchester road, and, with said tractor, to bring back to the construction camp a certain water tank wagon which had been left standing on Manchester road some distance from the construction camp; that said water tank wagon was large and heavy, and was facing westwardly on said road, and was partially mired, and, in order to bring back said tank wagon as ordered, it was necessary to connect the tractor with said tank wagon, and turn the tank wagon around so as to face eastwardly; that, while endeavoring so to turn said tank wagon around with the Fordson tractor, the tractor was caused to turn over and fall upon plaintiff, because of the negligence and carelessness of defendant and its agents, charged, in the language of the petition, to be as follows:

"(1) That defendant's said superintendent or foreman negligently and carelessly ordered and required plaintiff to use a Fordson tractor for the purpose of turning around and bringing in said water tank wagon, when the said foreman or superintendent knew, or by the exercise of ordinary care on his part should have known, that said Fordson tractor was unsuitable for such purpose, and was dangerous, and was liable, when being used for said purpose, to turn over and injure him, for that it, the said tractor, was too small and light for such purpose, and was not suitably equipped with connections for attaching said tractor to the pole of said tank, the connection of said tractor being set low and near the ground, and below the level of said pole, so that, when said tractor was connected with said pole by means of a chain, furnished by defendant to plaintiff for that purpose, and the attempt was being made to turn said tank by the use of said tractor, the pull upon said tank was downward and sideways, and the pull upon said tractor was upward and sideways, so that said tractor was liable to, and did, turn over and fall upon and injure plaintiff.

"(2) That defendant and its agents negligently and carelessly furnished to plaintiff, for the purpose of turning said water tank wagon around and bringing same in, a Fordson tractor when the said defendant knew, or by the exercise of ordinary care should have known, it was unsafe and unsuitable for such purpose, and was dangerous to plaintiff, for that it, the said tractor, was too small and light for such purpose, and was not suitably equipped with connections for attaching said tractor to the pole of said tank, the connection of said tractor being set low and near the ground and below the level of said pole, so that, when said tractor was connected with said pole by means of a chain, furnished by defendant to plaintiff for that purpose, and the attempt was being made to turn said tank by the use of said tractor, the pull upon said tank was downward and sideways, and the pull upon said tractor was upward and sideways, so that said tractor was liable to, and did, turn over, and fall upon and injure plaintiff."

The answer is a general denial, coupled with defenses of assumption of risk and contributory negligence. The facts alleged as constituting contributory negligence on the part of plaintiff are thus stated in the answer:

"First. That at the time plaintiff was requested to move said water tank the wheels of said water tank were deeply imbedded in the earth on which it stood, which fact was known to, and seen by, plaintiff, or by the exercise of ordinary care on his part could have been known and seen by plaintiff, but that plaintiff, notwithstanding the fact that said wheels of said water tank were deeply imbedded in the earth on which it stood, proceeded to, and did, attach said Fordson tractor to said water tank, and attempted to haul and move said tank with and by means of said tractor without first removing or loosening the dirt and earth in which said water tank was then and there imbedded, thereby carelessly and negligently causing said tractor to turn over backwards and injure plaintiff.

"Second. That plaintiff knew, or by the exercise of ordinary care could have known, that, if said Fordson tractor, when attached to said water tank, was started in second speed, without first removing or loosening the dirt and earth in which the wheels of said water tank were imbedded, the weight of said water tank would cause said Fordson tractor to turn over backwards, but that plaintiff carelessly and negligently attached said Fordson tractor to said water tank, when the wheels of same were so deeply imbedded in the ground and earth on which it stood, and then and there proceeded to start said tractor in second speed, thereby carelessly and negligently causing said tractor to turn over backwards and injure plaintiff.

"Third. That plaintiff carelessly and negligently at the time of his injury undertook to, and did, start said Fordson tractor in intermediate or second speed, when he knew, or by the exercise of ordinary care could have known, that the starting of said tractor in intermediate or second speed was liable to cause said tractor to turn over and injure plaintiff.

"Fourth. That the plaintiff negligently fed to the engine of said tractor an excessive amount of gas, and negligently suddenly put the power on said tractor, and so negligently operated and handled said tractor so that the same was turned over, and negligently failed to shut the power off when said tractor started to turn over."

The reply is a general denial of the allegations of the answer.

Plaintiff was 48 years of age, and had been in the employment of defendant some 2 or 3 months prior to his injury. Plaintiff testified that his duties were to help in the laying of concrete mixtures, and "in fact, anything that I was ordered to do"; that he had previously done steam fitting and plumbing, and had operated stationary engines, traction engines, automobiles, and tractors. Defendant's foreman described plaintiff's duties as operating the mixers, driving trucks, overhauling machinery, or "anything that might come up; he was a kind of a general utility man; he said he was a machinist and all-around mechanic, and was hired on the job for that." Some time after plaintiff entered defendant's employ, defendant purchased a new Fordson tractor. Defendant's foreman testified that the Fordson tractor "was on the job something like a month" before the happening of the casualty. According to the testimony of defendant's foreman, the Fordson tractor had been used to pull the concrete mixer, to pull out and remove rocks and boulders, to haul wagons loaded with material, and to pull the water tank wagon. Plaintiff testified that the tractor had been used to haul wagons loaded with material, to pull the road scraper or grader, and for hauling out mired trucks with a block and tackle; that he had never seen the tractor used in pulling the water tank wagon; and that the tractor had never before been used for that purpose. Plaintiff testified that he had operated or driven the tractor but three times, once to do some grading with a six-foot road grader blade, once to haul a wagon about half filled with lumber, on which were a "bunch of men," and lastly on the day he was injured. On one occasion he had assisted in pulling out a mired truck with the aid of the tractor and a block and tackle, which was attached to a telegraph pole for leverage, although on that occasion he had not personally operated the tractor, which appears to have been operated by a fellow employee. Plaintiff testified that, before the purchase of the Fordson tractor in question, he had never operated a Fordson tractor, and was not familiar with its mechanism. Both plaintiff and defendant's foreman testified that plaintiff had never pulled the water tank wagon with the tractor before the day of plaintiff's injury.

About 2 or 3 weeks before the day of the casualty, the water tank wagon had been used by defendant in supplying water for mixing concrete used in the construction of a bridge or culvert, and had been left standing in Manchester road at a distance of about three miles from defendant's construction camp. At the time the water tank wagon had been hauled to its location and left standing in the road, the ground or roadway was muddy, but subsequently the ground had been dried by the sun, leaving the tank wagon partially mired in the road. How deeply the tank wag on was mired does not appear from the evidence in the record. Plaintiff testified that the tank wagon had been hauled to its location with mules, but defendant's foreman testified that the tank wagon had been hauled to its location by the Fordson tractor. Before the purchase of the tractor, it appears that the tank wagon had been hauled at times by a large Mack automobile truck, and at other times by a pair of mules. The approximate weight of the tank wagon, when empty, was given by plaintiff as 2,000 pounds, and by defendant's foreman at 2,500 to 3,000 pounds. Another witness estimated its weight...

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