Erwin v. Collum Commerce Co.
| Decision Date | 10 June 1918 |
| Docket Number | No. 12914.,12914. |
| Citation | 204 S.W. 820 |
| Parties | ERWIN v. COLLUM COMMERCE CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.
"Not to be officially published."
Action by J. R. Erwin against the Collum Commerce Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Daniel O'Byrne, of Kansas City, for appellant. T. J. Madden, H. G. Pope, and E. C. Whitesitt, all of Kansas City, for respondent.
Plaintiff, while engaged as a driver of defendant's delivery wagons, was injured through the alleged negligence of defendant "in furnishing to plaintiff for his use a wagon that was old, worn, and rickety, and unfit and unsafe to be used for delivery purposes." He brought this suit for damages and recovered judgment for $2,500. Defendant has appealed upon the record proper, contending that the petition does not state facts sufficient to constitute a cause of action.
A demurrer to the petition was first filed, which was overruled, and then defendant filed a motion to make more definite and certain, and, this also being overruled, defendant filed answer and went to trial. Thereafter, by a motion in arrest of judgment, defendant again attacked the sufficiency of plaintiff's pleading.
The petition alleges that defendant is a corporation engaged in mercantile business in Kansas City and delivered its goods and wares by means of horses and wagons throughout said city; that plaintiff was in the employ of defendant as a driver of one of its said delivery wagons; that defendant furnished to plaintiff for his use a wagon that was old, worn, and rickety, and unfit and unsafe to be used for delivery purposes; that complaint was made of the defective condition of said wagon to one Russell, an official of defendant corporation, and to one Parker, foreman and vice principal of defendant, and both promised to remedy said condition and assured plaintiff that said wagon was in a reasonably safe condition for him to use and operate, and plaintiff relied upon said promises and assurances, and continued to use said wagon by reason thereof.
The petition further alleges that on or about August 2, 1915, plaintiff was in the employ of defendant as a driver of one of its delivery wagons, and while driving said wagon at or near East Thirteenth street and Lydia avenue, in Kansas City, Mo., a bolt in the singletree on said wagon broke, or a part of said singletree or some part thereabouts gave way and caused the horse attached to said wagon to become frightened and to run, away, and when said horse and wagon reached a point near East Fourteenth street and Lydia avenue, the foot or dashboard gave way, and plaintiff was thrown against the horse, the shafts, and to the ground breaking his leg and otherwise injuring him in certain ways therein particularly specified, and permanently crippling a ad disabling him.
The petition further alleged flat:
"Said defective condition of said wagon as aforesaid was the cause of said wagon and the parts thereof or attached thereto breaking down and thereby causing said horse to become frightened and to run away and to cause plaintiff to be thrown and to injure plaintiff as aforesaid."
The petition charged that:
"Said injuries to plaintiff were caused by the negligence of defendant in furnishing to plaintiff for his use a wagon that was old, worn, and rickety and unfit and unsafe to be used for delivery purposes, in that said wagon and the different parts thereof, such as the singletree, bolts, clevis, dashboard, bed, shafts attached to said wagon, and the other parts of said wagon were loose, worn, old, and unfit to be used, and unsafe for plaintiff or other workmen of defendant to use."
We observe in the first place that no complaint can now be heard as to the sufficiency of any particular ground of negligence because the defendant has not seen fit to bring to this court for review the action...
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