Fuerstenberg v. Kram

• Decision Date: 03 February 1923
• Docket Number: No. 17329.,17329.
• Citation: 249 S.W. 143
• Parties: FUERSTENBERG v. KRAM et al.
• Court: Missouri Court of Appeals

249 S.W. 143

FUERSTENBERG v. KRAM et al.

No. 17329.

St. Louis Court of Appeals. Missouri.

February 3, 1923.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by Theodor F. Fuerstenberg against Louis Kram and another, copartners, doing business as the Missouri & Illinois Fish Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Charles G. Revelle and Lew R. Thomason, both of St. Louis, for appellants.

Buder & Buder and A. W. Wenger, all of St. Louis, for respondent.

NIPPER, C.

This is an action for damages. Plaintiff seeks to recover of defendants for damages alleged to have been sustained by him by having his foot come in contact with a revolving universal joint attached to the propeller shaft in a boat used by defendants on the Mississippi river for the purpose of conveying fish from Grafton, Ill., to St. Louis, Mo. The injury is alleged to have occurred while plaintiff was engaged in pumping out water which had accumulated in the boat. His shoes being wet, it is alleged that his right foot slipped and was caught as it came in contact with the revolving set screws on this joint, injuring his foot in such a manner that it necessitated the amputation of three of his toes.

Plaintiff recovered judgment for $7,500, from which judgment defendants appeal.

The accident is alleged to have occurred on the 11th day of May, 1919.

There are numerous acts of negligence alleged in the petition. It is alleged that defendants' negligence consisted of their failure to exercise ordinary care to furnish plaintiff a reasonably safe place in which to work; failure to guard or cover said revolving shaft and the projecting set screws thereon ; negligently withdrawing and taking plaintiff from his regular employment in a place of safety to one unsafe; and negligently ordering him' to work in an unsafe place without warning him of the danger.

The answer was a general denial, together with a plea of contributory negligence. The contributory negligence set up in defendants' answer, upon which they rely to defeat recovery, is that plaintiff was careless, reckless, and negligent, because at the time he received his injury he was under the influence of intoxicants to such an extent that he was incapable of exercising ordinary care for his own safety, and that such negligence was the direct and proximate cause of his injury.

Harry Kram, one of the defendants, on the day before judgment was rendered, filed an affidavit denying that defendants were copartners and that such partnership existed at the time of the institution of this suit. In the original petition, Al Kram, Louis Kram, and Harry Kram were sued as copartners, doing business under the firm name of Missouri & Illinois Fish Company, engaged in buying, selling, transporting, and marketing fish in the city of St. Louis and elsewhere.

Plaintiff testified that on May 11, 1919, he was working for Louis gram at Grafton, Ill., as a hired man to receive fish and pay the fisherman therefor. After a certain amount o fish were caught, they would be taken aboard a barge and brought to St. Louis and placed upon the market. About 7 o'clock on the morning of May 11th, Louis gram and another loaded some fish on a barge at Grafton, Ill., after which Kram told plaintiff that he must go along with the shipment to St. Louis. Plaintiff informed gram that he had not yet had his breakfast, but gram replied that they would get something to eat when they got to St. Louis. Plaintiff, Louis gram, and the engineer or operator of the boat to which the barge was attached, whose name was Callahan, were the three parties on this boat. Plaintiff stated that when they had gone a short distance there was a little water coming into the boat, and gram said, "Let's pump the water out." Plaintiff took the pump and pumped the water out about three times from Grafton to St. Louis. They reached St. Louis, unloaded the fish, and placed them on trucks; this job being completed between 12 and 1 o'clock p. m. The fish were taken to the place of business in St. Louis conducted by Harry Kram, a son of Louis Kram. Plaintiff and Callahan, the engineer, were alone on the trip back to Grafton. The engine was started, and plaintiff took the pump and went to the place where the water had been coming into the boat and again started to pump the water out, and, on account of the wet and slippery condition, his right foot slipped from a board and came in contact with the revolving shaft and set screws, injuring plaintiff in the manner heretofore indicated.

Plaintiff also testified that Louis gram told him that he and his son were in partnership; that he (Louis Kram) bought the fish in Grafton, and his son Harry sold them in St. Louis; that Harry Kram, the son, also told him that he was in business with his father as a partner. He says he did not know before he became injured that there were any set screws on the driving shaft, as he had not been working on the boat. He testified there was no guard over this machinery, and no floor in the boat at that point. He also testified that Louis Kram had directed him to pump this water out of the boat after they had gone a short distance from Grafton on their way to St. Louis.

Plaintiff, on cross-examination, denied that he had any whisky that day, or that he drank whisky with witness Gelb, or that he knew witnesses Hyman, Shafron, or Deutch. He denied being intoxicated or having any intoxicants to drink on that occasion.

Harry N. Leitern, witness for the plaintiff, testified that he was receiving clerk for the St. Louis Boat & Engineering Company, and was familiar with boats. On the morning in question he saw plaintiff, and the beat on which he was riding at the time he received his injury, a short time after plaintiff was injured. He says there was no flooring over the shaft, and no boards over it to protect it. He also stated that he discovered no evidence of liquor, nor any indication that plaintiff had been drinking; that he stooped over plaintiff, and if plaintiff had been drinking he felt sure he would have noticed it.

Dr. R. V. Powell testified that he was at the City Hospital when plaintiff was brought there, that all patients were examined upon their admission to see if they were under the influence of alcohol or narcotics, and that there was nothing to indicate that plaintiff was under the influence of alcohol at that time.

On behalf of defendants, Harry gram, the first witness called, testified that the defendant Louis Kram was his father; that he worked for his father but they were not partners; that he was only a clerk and had nothing to do with the transportation of the fish; that plaintiff had begun working for his father about a month before the accident. He saw plaintiff on the morning of the accident. He went down to the river to wait for the boat to come in. When the boat came in, his father got off and went home. The engineer, Callahan, and Harry Kram unloaded the fish off the barge onto a truck. Plaintiff took no part in the unloading. After the truck was loaded, plaintiff asked him if he could ride to the store on the truck. This was about 10:30 a. m. Plaintiff got off the truck at Broadway and Biddle. One of defendants' places of business was at 1307 Biddle street. On the second or third trip down to the river he says he again saw plaintiff on the river bank talking to two other men whom he recognized as a Mr. Hyman and a Mr. Green. He saw plaintiff holding a quart bottle of whisky, and saw him hand the bottle to Hyman. Later, plaintiff came to the store and informed him that he was going back down to the river to go back to Grafton with Callahan, at which time witness says he informed plaintiff that he was "pretty well drunk," and that he should not undertake to go back, to which plaintiff replied that he was able to take care of himself. He says when the boat arrived in St. Louis after a trip it was the duty of the engineer to pump the water out of it; that the shaft and universal joint were incased in a box, and a board was used as a movable cover for the box; that in order to pump the water out of the boat and tighten the set screws, or to oil the engine, it is necessary to remove this cover; that the water comes into the boat where the propeller shaft goes out of it. He also testified that he had never authorized his counsel to admit that he and his father were partners in business; that he never gave any statement to the Dun Mercantile Agency to the effect that he was proprietor of or succeeded his father in the business of the Missouri & Illinois Fish Company ; that he got $30 per week salary.

Lew R. Thomason testified on behalf of defendants that he was one of defendants' attorneys, and filed the original answer to plaintiff's petition admitting that defendants were copartners; that up to the time he filed the answer he had never talked with either of the defendants, and had no knowledge as to whether or not they were copartners; that he was not informed as to the character of answer to be filed; and the admission of the...