Fisher v. Webb-Kunze Const. Co.

• Decision Date: 06 June 1924
• Citation: 263 S.W. 1022
• Parties: FISHER v. WEBB-KUNZE CONST. CO.
• Court: Missouri Court of Appeals

263 S.W. 1022

FISHER v. WEBB-KUNZE CONST. CO.

St. Louis Court of Appeals. Missouri.

June 6, 1924.

Rehearing Denied June 27, 1924.

Appeal from St. Louis Circuit Court; Vital Garesche, Judge.

"Not to be officially published."

Action by John Fisher against the Webb-Kunze Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jones, Rocker, Sullivan & Angert, of St. Louis, for appellant.

Foristel & Eagleton, of St. Louis, for respondent.

BRUERE, C.

Plaintiff, respondent here, brings this action to recover damages for Personal injuries alleged to have been sustained by him in consequence of defendant's negligence, while engaged in the service of the defendant. The judgment below was for the plaintiff for $7,472.84, and defendant has appealed.

Briefly stated, the petition avers that on the 24th day of December, 1019, plaintiff was in the employ of the defendant as a teamster and laborer, and while thus employed was required to drive a dump wagon belonging to the defendant, and to haul dirt in said wagon from defendant's quarry to a large hole or excavation, the sides of which slanted from the top to the bottom of said excavation, thus forming a steep grade or incline; that while thus engaged in driving said wagon over the side of said excavation the said wagon tilted, causing plaintiff to be thrown therefrom and sustain serious and permanent injuries.

The negligence charged in the petition, and upon which the case was submitted to the jury, is that the defendant negligently ordered the plaintiff to drive said wagon upon and over the side of said steep excavation, when it know, or by the exercise of ordinary care on its part could have known, that the wagon upon which plaintiff was seated would tilt when passing over the steep grade or incline of the excavation, and that the plaintiff was likely to be injured thereby; that the defendant negligently caused, suffered, and permitted a large piece of dirt to be and remain on the surface of the steep grade or incline of said excavation, when the defendant knew, or by the exercise of ordinary care on his part could have known, that other and additional men were required to hold said wagon steady while it passed over the steep grade or incline of said excavation, but that said defendant negligently failed to furnish any men for the purpose aforesaid; that the defendant negligently and carelessly assured the plaintiff that it was reasonably safe for him to drive said wagon under the circumstances aforesaid; and that plaintiff relied upon the superior knowledge of the defendant, although the defendant knew, or by the exercise of ordinary care should have known, that it was unsafe and dangerous as aforesaid.

The answer is a general denial, coupled with a plea of contributory negligence and assumption of risk and a further plea that plaintiff, prior to the bringing of this suit, had executed a release discharging the defendant from any liability on account of the injuries received by him. A copy of the release is attached to the answer, and reads as follows:

"Received of New Amsterdam Casualty Company $25, in full settlement and satisfaction of my claim for personal injuries, against Webb-Kunze Construction Company, which I sustained on or about the 24th day of December, 1919, while working for them, or by reason of any cause, matter, or thing whatsoever.

                                        "John Fisher. [Seal.]
                

"Dated at St. Louis, Mo., January 8, 1920.

"Received of Webb-Kunze Construction

Company the sum of $25, which I (being of lawful age) acknowledge to be in full accord and satisfaction of a disputed claim growing out of an accident and bodily injuries sustained by me on or about the 24th day of December, 1919, while employed by said Webb-Kunze Construction Company at Watson road and Arsenal street in the city of St. Louis, Mo., for which accident and bodily injuries I have Claimed the said Webb-Kunze Construction Company to be legally liable, which liability is expressly denied; and in consideration of said sum so paid I hereby release, acquit, and forever discharge the said Webb-Kunze Construction Company, its successors and assigns, from any and all actions, cause or causes of action, claims and demands at common law or for violation of any city ordinance or statute (except the Workmen's Compensation Act, hereafter referred to) for, upon or by reason of any damage, loss, injuries, o:." suffering, including damage to property, which heretofore has been, or which hereafter may be, sustained by me in consequence of such accident and injuries. In the event any claim or claims for compensation or medical, surgical or hospital expense, or disfigurement or mutilation, shall hereafter be made by the undersigned, his heirs, executors, or administrators, against the New Amsterdam Casualty Company, a corporation, and the said Webb-Kunze Construction Company, or either of them, under or by virtue of the provisions of Senate Bill No. 389, Laws of Missouri 1919, pp. 456 to 485, inclusive, approved April 28, 1919, and known as the `Workmen's Compensation Act,' on account of the accident and injuries hereinbefore mentioned and referred to, it is hereby stipulated and agreed that the amount herein shall be considered as payment under said act, and that credit for said sum shall be given to said New Amsterdam Casualty Company and said Webb-Kunze Construction Company, by any Missouri Workmen's Compensation Commission, which has been, or may hereafter be, appointed by the Governor, in accordance with the terms and provisions of said act.

"In witness whereof, I have hereunto set my hand and seal this 6th day of January, 1920.

                                             "John Fisher. [ Seal.]
                "Witness: John L. Kebke."
                

The reply alleged that plaintiff was induced to sign the purported release by fraudulent representations made to the plaintiff by the claim agents of the insurance company therein mentioned, which carried the defendant's liability insurance ; that plaintiff was illiterate, uneducated, and unable to read; that the said claim agents represented to him that the release signed was in fact accident insurance benefits for his previous two weeks disability, and that, relying on these representations, plaintiff thought and understood that he was signing a receipt for said accident insurance benefits, and signed the same and received a draft for $25 from said insurance company; that the plaintiff tendered back to the defendant, and to said insurance company, said sum, with legal interest thereon from the date of the signing of the said purported release; and that the defendant and said insurance company refused to accept the same. In the reply the plaintiff makes a tender to the defendant of the sum of $25, with interest as aforesaid.

As to the manner in which the accident occurred the following facts were shown by the evidence adduced by the plaintiff. The plaintiff was injured December 24, 1919, at about 10 o'clock a. m., while in the employ of the defendant as a teamster, and while hauling dirt, with a team of mules and a dump wagon, from a steam shovel on defendant's premises to a dump, which was also thereon. This dump was about 20 feet high, and its sides sloped at an angle of about 40 or 50 degrees from the horizontal. This dump was formed in filling up a large hole or excavation. In dumping the earth the plaintiff was under the supervision of a foreman, Joe Reagan, who directed the plaintiff when and where to dump. Prior to the time that plaintiff was injured he had been dumping the earth on the top near the slope of the dump. On the occasion under inquiry he was told by Joe Reagan to drive down and along a side of the dump. Scattered on this side were large pieces of frozen lumps of dirt, and it appears that the slope `was covered with frost. When Reagan directed the plaintiff to drive down the slope of the dump, plaintiff said to him, "It is very dangerous to go down, have somebody to hold." To this Reagan replied, "Go ahead; it is all right." Relying on the assurance of safety given him by Reagan, plaintiff proceeded to drive down the slope, when, after. pulling the dump lever of the wagon, in obedience to the direction of Reagan, and while driving down the decline, the wagon slipped and hit a large circular lump of frozen dirt or ice, which caused the wagon to tip over or tilt, throwing plaintiff therefrom and causing him to slide down the slope on the ice, and to sustain the injuries complained of. The frozen lump of dirt or ice was about two feet in diameter and six to eight inches thick. The left hind wheel of the wagon struck said lump of dirt or ice. Plaintiff testified that he could not see said obstruction because he was sitting on the right-hand side of the wagon watching his Learn, and that he was certain no circular pieces came out of his wagon when he dumped.

The evidence of the plaintiff further tended to show that the regular or the customary manner of doing the work that plaintiff was engaged in at the time he was injured was to have men hold the wagons when driving down a decline such as the one in question.

The evidence adduced by the defendant regarding the facts of the accident consisted of the testimony of Joe Reagan, defendant's foreman. His testimony tended to show that the dump was three hundred feet in diameter and about eight feet high, and that there was a slope down to the ordinary surface about four and a half to five feet ; that he told the plaintiff to drive down the dump, and directed him to dump his load in the middle and on the side of the slope; that while the plaintiff was driving down the slope, after he had dumped the wagon by means of a lever, a frozen piece of dirt, about two feet in diameter and about six or eight inches thick came in contact with the left hind wheel of the wagon and turned and tilted it, causing plaintiff to be thrown therefrom; that when he saw the wagon tip "he made a catch for it, but that...