Gates v. Crane Co.

• Citation: 204 S.W. 38
• Decision Date: 20 May 1918
• Docket Number: No. 12888.,12888.
• Parties: GATES v. CRANE CO.
• Court: Missouri Court of Appeals

204 S.W. 38

GATES v. CRANE CO.

No. 12888.

Kansas City Court of Appeals. Missouri.

May 20, 1918.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

"Not to be officially published."

Action by August Gates against the Crane Company for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

Grant I. Rosenzweig, of Kansas City, for appellant. Atwood & Hill, of Kansas City, for respondent.

BLAND, J.

Plaintiff recovered a verdict and judgment in the sum of $4,000 for personal injuries alleged to have been sustained by him through the negligence of the defendant.

Defendant contends that its demurrer to the evidence should have been sustained. The facts, taken in their most favorable light to plaintiff, show that on November 27, 1915, and for about four years prior thereto, plaintiff was in the employ of the defendant as a driver. At the time of the injury, which was on said date, defendant had in its use 10 or 11 large two-horse wagons which were used to haul heavy plumbing and hardware supplies on the streets of Kansas City, Mo. The capacity of each of these wagons was from 7,500 to 10,000 pounds. They were of a good standard make. On the clay named plaintiff was driving one of these wagons along an almost entirely smooth asphalt street in said city when the right-hand rear axle or spindle broke, causing plaintiff to be thrown from a high seat on the wagon, to his severe injury.

About two weeks prior to the accident plaintiff was driving the same wagon, loaded heavily, when the same wheel Ian against a street car track that protruded unusually above the street, springing the right-hand axle to such an extent that the upper part of the wheel inclined in toward the wagon so that the wheel rubbed against one of the rear stakes on the wagon. (There was no bed on the wagon.)

Plaintiff had nothing to do with the greasing or inspecting of the wagon he drove. These duties were all performed by other men in defendant's employ. Defendant had a barn foreman by the name of Johnson whose duties in reference to making repairs were to keep a close watch on all appliances, including wagons, horses, and harnesses, and when anything was out of repair to see that it was given immediate attention and put in repair. On the same day, and after the axle was sprung, plaintiff called the foreman's attention to its condition, and the latter told him to go ahead, that he would have the night inspector or greaser of wagons inspect the wagon, but he assured plaintiff that the wagon was safe. Plaintiff did not inspect the wagon, because to inspect wagons was not a part of his duties, and he relied upon the assurance of Johnson that the night inspector would make the inspection and repairs, and that the wagon was safe for use, although the axle was sprung, believing that he could safely use the wagon in that condition.

Between the time the axle was sprung and the day of the accident plaintiff used the wagon daily, hauling heavy loads, often as much as 9,800 pounds, and had hauled a load of that weight shortly before the accident. At the time of the accident his load was from 1,800 to 2,000 pounds. The rear axle consisted of a solid piece of steel that was described as a 2½-inch axle. The portion that broke was the spindle part of the axle immediately adjoining the shoulder.

Soon after the accident plaintiff examined this axle, and found that there was a crack which was rusty and in places had grease in it; that this crack started at the top of the axle and ran within one-half an inch of the under side of it, and that the bottom or last half inch of the axle showed a fresh break. An expert wagonmaker testified that an axle that was bent such as this one would not be in a good state of repair. Foreman Johnson gave as an excuse for his na having the wagon repaired that there was a shortage of wagons at the time, and that he wanted to keep down the repair expenses for that month. Johnson testified that he knew the wagon was defective, but "we had to take those chances." The night inspector and greaser of the wagons testified that a week or two before the accident he noticed the sprung condition of the axle. The wagon remained in the possession of the defendant, but at the time of the trial no one knew the whereabouts of the broken axle.

Defendant contends that there was no causal connection shown between the sprung condition and the breaking of the axle. In this connection defendant contends that plaintiff's testimony that he had discovered an old crack in the axle after the break is not worthy of credit as being against the physical facts. Defendant apparently assumes that the old crack occurred at the time the axle was sprung, about two weeks before the accident, contending that, as the spindle or axle was bent upward, if any crack occurred at that time, it would be at the bottom of the axle, and not at the top. We are not prepared to say that, even had the crack occurred at the time of the springing of the axle, plaintiff's testimony as to what he found in reference to the old crack is against the physical facts. It is not necessary for us to make any answer to this contention, because the jury was not compelled to find that the crack occurred at the time of the springing of the axle, but it might have found that the crack existed before and at the time of the springing of the axle. The wagon had been in use for some time. The crack was rusty and had grease in it. These facts tended to show that it was of some age. No doubt it was the cracked or defective axle, together with the blow administered to it, that caused the axle to bend.

Defendant contends that there is nothing in the evidence to show that the crack in the axle could have been discovered by a reasonable inspection. There is some evidence tending to show that a crack such as the one described by plaintiff could have been discovered by a reasonable inspection. The expert wagonmaker testified that an ordinary axle had scratches on it caused by the wearing of dust and grit, and if sand were present the axle would be marked or grained; that ordinarily a crack could not be discovered except by heating the axle red hot, but he testified that, if a crack such as plaintiff described was present, there would be no difficulty in finding it by an ordinary...