Cowan v. Hydrulic Press Brick Co.

• Decision Date: 08 June 1920
• Docket Number: No. 16086.,16086.
• Citation: 222 S.W. 924
• Parties: COWAN v. HYDRULIC PRESS BRICK CO.
• Court: Missouri Court of Appeals

222 S.W. 924

COWAN v. HYDRULIC PRESS BRICK CO.

No. 16086.

St. Louis Court of Appeals. Missouri.

June 8, 1920.

Appeal from St. Louis Circuit Court; Samuel Rosenfeld, Judge.

"Not to be officially published."

Action by Frank Cowan, a minor, by Mrs. Ida Cowan, his next friend, against the Hydraulic Press Brick Company, a corporation. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Werner & Penney, of St. Louis, for appellant.

Charles A. Lich, of St. Louis, for respondent.

BIGGS, C.

From an adverse judgment for $3,000 in a negligence case arising out of the relation of master and servant, defendant appeals, specifying as error the failure of the court nisi to direct a verdict for defendant and error in giving plaintiff's main instruction to the jury, which covered the whole case and upon which a liability was predicated.

On October 13, 1916, when plaintiff was 10 years of age, he was employed by defendant as a driver of a team of mules delivering brick about the city of St. Louis. It is alleged by plaintiff, that defendant, in disregard of its duty to furnish plaintiff with a. proper, suitable, and safe team, did furnish him with a team of mules of vicious, dangerous, and incorrigible habits and tendencies, which habits and tendencies were known to the defendant, or might by the exercise of ordinary care on its part have been known to it; that on account of his youth and inexperience in driving said team of mules, and while acting under the orders of defendant's foreman and in the usual course of his employment, and while driving said team across the Compton avenue bridge, said team became vicious, unmanageable, incorrigible, and unruly and with a sudden jerk started to run away, and that as a result of the sudden jerk of said team, and the severe jolting of the wagon caused by the speed at which said team was going, plaintiff was thrown from his seat on the wagon to the street, dragged for about 10 feet, and severely injured.

It is further alleged that plaintiff complained to the defendant's foreman about the habits of said team, with the statement that plaintiff could not manage the team on account thereof, and that plaintiff was assured by the foreman that the team was not vicious and dangerous and that he could safely handle them, and that plaintiff was told by the foreman to proceed with his work; that plaintiff thereupon, relying on the foreman's superior knowledge, continued his work with the team.

The case as made is bottomed entirely upon plaintiff's version of events. In considering the demurrer to the evidence we must concede plaintiff's statements to be true and draw from them every inference that may :reasonably be drawn in his favor.

Plaintiff started to work for defendant when 12 years of age, driving a small (donkey) mule to a cart. In September prior to the accident, which happened October 13, 1916, plaintiff commenced driving a brick wagon drawn by two mules. The wagon was without brakes, but was equipped with a chain to lock the wheels when going down grade.

In the language of the witness:

The team they furnished me in the beginning was a gentle young team of mules; a small team they had been driving on the clay hill a long time. They were gentle and weren't mean and shy or anything like that. Their names were Buckskin and Frank, and I drove them from August up to October 11th. On October 11th I was 15 minutes late. There was nothing but that big team in the stable. The stable boss said I had to take that team. I went out that morning with that team and I came back at 5 o'clock in the evening. This team I continued to drive up until the time of the accident. I had to; they wouldn't give me another team. I complained to Ed Haag, the foreman at the yard, and told him two or three times about that team. I told him in the morning again and I told him in the evening I couldn't handle them because I could not make more than one or two loads a day, because I couldn't handle them. I made this complaint the first time that evening when I came in on the first day that I had them out.

When I complained to Mr. Haag he said: "Go ahead and drive it. It's a gentle team; there isn't anything the matter with them." I went out. It was near the end of the pay roll and I was trying to make up the pay roll. The first complaint was made on the evening of the first day. The next time I complained was the next day at 12 o'clock. I told him if I couldn't get my team I would have to quit. He said by him being short to go ahead and drive them; he would try to get my team back as soon as he could. That evening when I came in I asked the stable boss, John Farrier, I asked him: "What did he say about that team?" He said he had gone and I would have to take the team out the next morning. The next morning I took the team out. I did not see Haag after that.

On the 13th, prior to the time of the accident, I was going to Compton and Chouteau, hauling a load of brick. While I was going over the Compton viaduct or bridge, the mules were shy and what you call a team spreads, when you go down a hill they open like that (illustrating). I couldn't handle them; they were too big and hard. When I was about 10 feet away from the curb there was a depression on the right side of the bridge. There was some trains and a lot of noise, and the mule on the right side had been shy all that day and ever since I had him. When I got near the hill, going down hill, it was hard to hold back and they would spread and slip and slide on the blocks. This mule on the right side got afraid of the whistle and he jumped like that (illustrating) —I mean the train whistles around there, trains underneath the viaduct—this mule jumped on the sidewalk and the wagon ran in the depression and he caused the other mule to spread as much as he did. He pulled the wagon over to the sidewalk and the front wheel went into the depression; the front wheel on the right side went into the depression. He did this suddenly. I was going south.

When it went into that depression I was sitting in the middle of the board. I fell off the wagon and my leg caught between the wheel and the iron curb. I had for a seat on this wagon an ordinary board. When I started out that morning I had a spring seat, my property. I paid $2.50 for it, and when I came back from my second load I had to get a drink of water, and when I came back my seat was missing and I picked up an ordinary board I saw, going out of the yard. I got my leg caught between the curb and the front wheel on the right side. After that this mule on the left side was held back and the other one was trying to run. He was walking fast. I was dragged about 10 feet.

On cross-examination plaintiff testified:

I started to drive this last team on October 11th in the morning and drove it all clay the 11th and 12th and the 13th up to the time of the accident at 3 o'clock in the afternoon. I had driven across the bridge and over the crown and had commenced to go down the southern incline, and going down that incline the viaduct is paved with wooden blocks and it was a little hard to hold the team hack going down hill. They were inclined to spread, by that I mean separate, and as I was going down the front right-hand wheel, as I went south, dropped into a depression on the side of the paving. There is...