O'Dell v. National Lead Co.

• Decision Date: 06 July 1923
• Docket Number: No. 17893.,17893.
• Parties: O'DELL v. NATIONAL LEAD CO.
• Court: Missouri Court of Appeals

253 S.W. 397

O'DELL v. NATIONAL LEAD CO.

No. 17893.

St. Louis Court of Appeals. Missouri.

July 6, 1923.

Rehearing Denied. July 12, 1923.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

"Not to be officially published."

Action by William L. O'Dell against the National Lead Company, a corporation, to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

Wilfley, Williams, McIntyre, Hensley & Nelson, of St. Louis, for appellant.

Marsalek & Stahlhuth, of St. Louis, for respondent.

BECKER. J.

Plaintiff recovered a judgment for $500 against the defendant as damages for personal injuries alleged to have been sustained by him by being struck on his light hand by the crank handle of a Ford truck of the defendant company on which he was employed as assistant to the chauffeur thereof, back-firing or kicking when he attempted to crank it. Defendant in due course appeals.

From a careful examination of the record, we have come to the conclusion that plaintiff failed to make out a case for the jury, and that the learned trial judge should have sustained the instruction in the nature of a demurrer offered by the defendant at the close of the case.

The gist of plaintiff's cause of action, as we gather it from plaintiff's amended petition, is that he was employed by the defendant company as "back hand" upon a Ford truck belonging to the defendant, being under the authority and direction of the employee of the company who acted as chauffeur on the said truck. Said chauffeur and plaintiff constituted the crew in charge of the truck, and it was plaintiff's duty to ride upon said truck, to crank the same when starting, and to assist the chauffeur In loading and unloading material therefrom. That on the 16th day of August, 1919, while the chauffeur and plaintiff were riding on the truck, the machinery of said truck made an unusual grinding noise and the truck stopped. That plaintiff and the said chauffeur then attempted to start the truck, but were unable to do so or to discover what was the cause of the trouble. That the chauffeur then went to report the trouble to the defendant's head mechanic who had charge of inspecting and repairing defendant's trucks, and that when, after a short time, the chauffeur returned to the truck, he got into the driver's seat, fixed the switch, and said to the plaintiff: "Crank the truck. Let's go ahead." That plaintiff thereupon went around and took hold of the starting crank, gave it a quarter turn. That "it kicked back," struck plaintiff in the right hand, breaking two bones thereof. That the grinding noise made by the truck when it stopped and its failure to start and the "kicking" of the said crank handle were all caused' by the fact that the crank shaft of said truck was broken. That plaintiff was not a mechanic and had no knowledge of the construction or method of operation of the motor or propelling apparatus of said truck, and that he was not required by defendant to perform any duties in or about the inspection, maintenance, or repair of said truck, and that plaintiff's injuries were directly due and caused by the following acts of negligence on the part of the defendant, namely: That the defendant then and there by and through its head mechanic in charge of the repair and maintenance of the truck, and the said chauffeur in charge of the truck, "negligently ordered, instructed and required, and thereby caused plaintiff to crank said truck when defendant, by the exercise of ordinary care to inspect said truck, might have known and knew that the crank shaft was broken and that as a result of said condition said crank handle was `likely to kick' and injure plaintiff if plaintiff attempted to crank the same, and might have known the said facts in time to have averted plaintiff's injury by the exercise of ordinary care."

Under the allegations of plaintiff's amended petition, in order to make out a case, plaintiff had the burden of proving the following essential facts: First, that defendant's mechanic and the chauffeur or either of them were authorized by defendant to command or give orders to plaintiff concerning his work, and that one of them negligently ordered plaintiff to crank the truck; second, that the crank shaft on the truck was broken prior to the time it back-fired or "kicked" and injured plaintiff; third, that the broken crank shaft caused the truck to kick and injure plaintiff; fourth, that the condition of the crank shaft was known to defendant or, by the exercise of ordinary care, could have been known a sufficient length of time so that defendant by the exercise of ordinary care could have prevented the injury; fifth, that defendant negligently failed to make such inspection and warn plaintiff of the danger, and that as a result of the aforesaid negligence plaintiff was injured.

From an examination of the record we are satisfied that plaintiff's own testimony was sufficient to make it a question for the jury as to whether or not the chauffeur in charge of the truck was authorized by the defendant to command or give orders to plaintiff concerning his work, and...