Courter v. Tootle, Wheeler & Motter Mercantile Co.
| Decision Date | 29 March 1909 |
| Citation | 118 S.W. 505,136 Mo.App. 517 |
| Parties | JOHN M. COURTER, Respondent, v. TOOTLE, WHEELER & MOTTER MERCANTILE CO., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Chesley A. Mosman, Judge.
REVERSED.
Judgment reversed.
Samuel I. Motter and Brown & Dolman for appellant.
(1) The plaintiff's case, both upon the pleadings and upon his evidence, is founded on negligence, and the burden of proof is on him throughout the trial to prove it. Dowell v Guthrie, 116 Mo. 654; Ryan v. McCully, 123 Mo 636; Glasscock v. Dry Goods Co., 106 Mo.App. 663; Yarnell v. Railway, 113 Mo. 580. (2) And it is a question of law whether the evidence tends to prove such negligence in this case. Ryan v. McCully, supra; Glasscock v Dry Goods Co., supra; Gurley v. Railroad, 104 Mo. 223; Dowell v. Guthrie, supra; Minnier v. Railway Co., 167 Mo. 120; Titus v. Railroad Co., 136 Pa. St. 618; Bradley v. Railroad, 138 Mo. 302; Jackson v. Railway, 104 Mo. 448. (3) If a negligent manner of doing the work makes the place less safe, that is one of the risks which all engaged in the work have assumed as a risk of the occupation. Deyo v. Tool Co., 137 F. 480, 483; Bridge Co. v. Seeds, 144 F. 605, 611; Cullen v. Norton, 126 N.Y. 1; Armour v. Hahn, 111 U.S. 318; Brady v. Railway, 114 F. 103; Bradley v. Railway, 138 Mo. 302; Livengood v. Lead & Zinc Co., 179 Mo. 240; Forbes v. Dunnavant, 198 Mo. 208; Ryan v. McCulley, 123 Mo. 645; Kinnear Mfg. Co. v. Carlisle, 152 F. 937; Cregan v. Marston, 126 N.Y. 572; Mining Co. v. Duke, 164 F. 182. (4) The crates will be presumed to have been properly handled and piled when put in because every one is presumed to properly acquit himself of his engagements and his duty. Yarnell v. Railway, 113 Mo. 579; Lennox v. Harrison, 88 Mo. 491; Bridge Co. v. Seeds, 144 F. 605, 609.
S. I. Motter and Brown & Dolman for respondent.
This is a suit against defendant, a corporation engaged in the wholesale dry goods business, for damages alleged to have been the result of defendant's negligence.
On or about the 20th day of April, 1906, the plaintiff was engaged with three other employees in unloading from a car crates of linoleum and storing them in defendant's warehouse. These crates were twelve feet long, fourteen inches in diameter and weighed from five hundred and fifty to seven hundred pounds. They were constructed by using two pine boards, each fourteen inches square, one at each end of a roll of linoleum. The ends of two boards, each fourteen inches square, were nailed to the opposite edges of these boards. The roll of linoleum was then placed between these boards and, to secure them in place, short pieces of pine about six inches wide, six or eight in number, were nailed at intervals across the open sides. In the language of the description given in the briefs, "the structure looked like a common tree box, closed at the ends, within a roll of linoleum inside instead of a tree." The dimensions of the warehouse were eighty by one hundred feet; and, according to the evidence, the warehouse was imperfectly lighted.
The crates were stored in piles four feet high. On the occasion in question, the plaintiff with the other employees was engaged in piling crates of the description named upon a pile that had been made sometime previously. The crates were carried to the place desired upon a truck. The manner of depositing them was for two men to place a flat iron bar about three feet long under one end of the crate and by this means to lift that end up to a level with the top of the pile, and put one end of the iron bar on the top of the pile, and then the man at the other end of the bar would hold on to it and support that end of the crate. The man that had raised the inside end of the iron bar to the top of the pile would then go to the other end of the crate and help the two there to raise it, and then all hands would roll it on the pile. While the plaintiff was lifting the end of the bar next to the pile of crates, he was struck near the hip bone by one of the cleats in the pile, which had become loosened and protruded outward, and was injured. It was shown that these cleats frequently became detached while the crates were being handled, and the employees were instructed by defendant's superintendant that when they saw one that was loose to nail it back and, if that could not be done satisfactorily, to take it off. And it was shown that both the employees and the superintendent at times nailed these cleats when they observed that they were loose or took them off when they deemed that proper. And that it was a thing which frequently happened and the matter would be remedied by any one of them when it came under his notice. Such was the usual course pursued in the handling of these crates and with which plaintiff was familiar.
The plaintiff recovered judgment and defendant appealed. Several questions are raised on the appeal, but we will confine our discussion to the one that we think is decisive of the case. The defendant by proper instruction raised the question of the right of plaintiff to recover on the pleadings and evidence. The court entertained the...
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