Daugherty v. Spuck Iron & Foundry Co.

• Decision Date: 02 November 1943
• Docket Number: No. 26435.,26435.
• Citation: 175 S.W.2d 45
• Court: Missouri Court of Appeals
• Parties: DAUGHERTY v. SPUCK IRON & FOUNDRY CO.

175 S.W.2d 45

DAUGHERTY v. SPUCK IRON & FOUNDRY CO.

No. 26435.

St. Louis Court of Appeals. Missouri.

November 2, 1943.

As Modified on Denial of Rehearing November 22, 1943.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be published in State Reports."

Personal injury action by Frank Daugherty against Spuck Iron & Foundry Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Kenneth Teasdale, of St. Louis, for appellant.

John C. Kappel, Jr., of St. Louis, for respondent.

McCULLEN, Judge.

This is an action for damages for personal injuries alleged to have been sustained by respondent, hereinafter referred to as plaintiff, as the result of an act of an employee of appellant, hereinafter called defendant. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff in the sum of $1,750. After an unavailing motion for a new trial defendant duly appealed.

The petition of plaintiff alleged that on November 29, 1941, while he was in the employ of the Anderson Motor Service Company as a truck driver he drove to defendant's foundry for the purpose of taking a truckload of castings for delivery elsewhere; that while defendant, through its employees, was loading the castings in the truck, defendant's foreman in charge of the loading requested plaintiff to assist in said work; that while so assisting defendant's employees, a heavy metal casting was dropped by defendant's employees, thereby inflicting severe and permanent injuries on plaintiff; that said injuries directly resulted from the negligence of defendant and its employees in the following respects:

(a) In failing to have a sufficient number of employees to load the heavy metal castings so that said heavy casting would not fall out of control of the persons handling same.

(b) In allowing said heavy metal casting to fall upon plaintiff and injure him.

(c) In failing to warn plaintiff that said heavy metal casting was out of control and was likely to fall upon plaintiff.

(d) In failing to hold on to said casting so that the same would not fall upon and injure plaintiff.

The amended answer of defendant, after a general denial, alleged that plaintiff's own negligence directly contributed to cause his injuries in that while defendant's workmen were engaged in loading castings into the truck operated by plaintiff, plaintiff negligently and voluntarily placed himself in said truck in a position of danger of being struck and injured by said castings; that he voluntarily directed and supervised the method and manner in which said castings should be loaded, and voluntarily undertook to assist defendant's employees in so loading the truck under plaintiff's supervision; that plaintiff assumed the risk necessarily incident to the method and manner by which he undertook to assist in the loading of said castings.

Defendant contends that the court erred in submitting the case to the jury, and argues that plaintiff was not an employee of defendant; that no one had authority to invite him to assist in loading the casting; that he was a volunteer in that operation; and that the only duty owed him by defendant was to refrain from wilfully injuring him. Said contention makes necessary a review of the evidence.

It appears from the evidence that about nine o'clock on the morning of November 29, 1941, plaintiff was instructed by his employer, the Anderson Motor Service Company, to go to the Spuck Iron & Foundry Company at 3145 North Fourteenth Street in the City of St. Louis and there pick up fifteen thousand pounds of castings and return them to the loading docks of his employer. Following said instructions, plaintiff drove a tractor-trailer truck of about twenty thousand pounds capacity to defendant's place of business where he was directed by defendant's foreman (later pointed out by plaintiff as defendant's witness Rapsilber) to take the trailer truck inside defendant's building so that the castings could be placed in the trailer. With respect to the backing of the truck into the building, plaintiff testified:

"Q. Were you instructed to do that? A. Yes, sir.

"Q. Who instructed you? A. I don't know who the man was. He must have been somebody in charge there; foreman or somebody.

* * * * * *

"Q. Who directed the loading of these castings onto your truck? A. This foreman.

"Q. Did he seem to be in authority there for that purpose? A. Seemed to have some authority; foreman or superintendent, or somebody.

"Q. Did this same man direct them in their job? A. That is right."

Continuing his testimony, plaintiff stated that defendant's foreman gave him directions as to the manner of loading the castings, telling him that it would be necessary to do quite a bit of maneuvering in order to get them into the trailer; that a derrick, also referred to as a crane, was being used to lift the castings from the ground onto the truck; that the first two castings loaded were about ten feet in length and weighed about twenty-four hundred pounds each; that in loading them it was necessary for plaintiff to back his truck because the range of the derrick or crane was only about ten or twelve feet; that the first two castings were placed lengthwise in the truck, one on each side; that as these castings were loaded, one Jordan, an employee of defendant, was in the truck and released the chain after each casting was placed in position; that two other employees of defendant were on the ground hooking the castings or pulling the chain; that after the two large castings were placed in the trailer several smaller castings yet remained to be loaded on the truck and that the foreman, Rapsilber, told plaintiff it would not be necessary to maneuver his truck in loading them but that they would need help to get them in the truck. At this point plaintiff testified: "Q. Did he ask you to help them? A. Yes, sir. * * * He asked me if I would help him — that younger man that he had up in the trailer — with the castings."

The various witnesses referred to the vehicle sometimes as the "truck" and at other times as the "trailer," but it is clear that the vehicle was a trailer about eighteen feet in length which was pulled by a tractor. In the loading of the smaller castings a chain would be attached to the casting and it would be lifted by the derrick over the side or rear of the trailer and lowered into place, after which it was necessary to move the casting forward in the trailer from the place toward the rear where it was deposited by the derrick. It appears from the evidence that plaintiff and one of defendant's employees (Jordan) together would move the smaller castings forward by "walking" them. That operation consisted of each of the two men alternately lifting his end and moving it forward until the casting was placed where desired. It was in connection with one of these "walking" operations that plaintiff sustained his injury. Plaintiff testified:

"Q. And who was directing this work? A. This man that seemed to be in charge there.

"Q. The same man who had directed you into the building? A. That is right.

"Q. And the same man who had directed the loading of the larger castings? A. That is right."

With respect to the particular casting that fell on and injured him, plaintiff testified:

"Q. And how far had the two of you moved it from the place where it was set toward the rear of the truck up until the time you were injured? A. We had moved it, I might say — or I will say — about ten feet.

"Q. Directly toward the front of the truck? A. That is right.

"Q. Then tell us what happened? A. We had it moved towards the front of the truck, and then we was going to turn it around so it would fit in place, and we was still moving it in the same manner that I explained before, and this fellow just turned around and turned loose of it, and I couldn't hold it; it got off balance when he turned loose of it, and just fell on my leg; and of course I tried to jump out of the way of it, but I just wasn't quick enough."

In answer to further questions at this point plaintiff said that the casting "was off balance" when Jordan "turned loose of of it." Plaintiff further testified that the person directing the operation of loading the castings (Rapsilber) asked him if he would get up in the truck and assist the man that was up there in loading the castings; that he said to plaintiff: "You can just take this casting here and move it one end at a time until you get it up in the truck where it belongs. * * * The man can't do it by himself."

On cross-examination plaintiff testified that defendant's employees were loading the castings on the trailer while he manipulated the tractor; that there were three of defendant's employees; that he had been told by his employer's dispatcher to go over to the Spuck Iron & Foundry Company; that they had fifteen thousand pounds of castings over there; that he would have to back inside of the building; that the dispatcher told him, "they will load them for you." Plaintiff stated he had never before been to defendant's place of business.

Referring to defendant's employee Jordan, plaintiff further testified:

"Q. Immediately before he removed his hands was anything done by him, or by any other person of the Spuck Iron Company, to hold the casting stationary, so that it couldn't fall one way or the other? A. He was holding his hand off, and I was holding my hand to keep it from falling over.

"Q. Was there anything other than your hands attached to the casting to hold it? A. No, not a thing.

"Q. Before he removed his hands? A. Not a thing.

* * * * * *

"Q. Now, this man that was assisting you in moving this casting on the truck, before he removed his hands from the casting, as you testified before, did he give you any warning or signal in advance that he was going to let go? A. No, he just turned loose of it."

According to the testimony of plaintiff, the casting which fell upon and injured him weighed between...