Gilbert v. Hilliard

• Citation: 222 S.W. 1027
• Decision Date: 08 June 1920
• Docket Number: No. 15923.,15923.
• Parties: GILBERT v. HILLIARD.
• Court: Missouri Court of Appeals

222 S.W. 1027

GILBERT v. HILLIARD.

No. 15923.

St. Louis Court of Appeals. Missouri.

Argued and Submitted May 11, 1920.

Opinion Filed June 8, 1920.

Rehearing Denied June 23, 1920.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Action by Charles F. Gilbert against George Hilliard. From judgment for plaintiff, defendant appeals. Affirmed.

George W. Lubke and George W. Lubke, Jr., both of St. Louis, for appellant.

Sears Lehmann and Lehmann & Lehmann, all of St. Louis, for respondent.

REYNOLDS, P. J.

This is the second appearance of this case in our court. When here on a former appeal the judgment of the circuit court was reversed and the cause remanded, as will be seen by an examination of our opinion, as see 187 S. W. 594, not to be officially reported. It was recited in the petition then before us, that the defendant's agent "negligently ordered the plaintiff to stand upon the wagon overloaded with wet shingles on which his footing was insecure," etc. Our court held that there was no evidence in the case of any such specific order and no direction in the instructions on which to base a finding of the giving of any such order, and at first reversed the judgment without remanding the cause. On a motion for rehearing being filed, the court modified this order, reversed the judgment of the circuit court and remanded the cause, on the theory that on a new trial, if one was had, the petition might be amended in such manner as to show that the negligent order in evidence in the case, that the plaintiff should drive from the wagon, might have meant, under the facts in the case, that the plaintiff was to stand on the wagon, that is, considering the condition and kind of load, that it would naturally be inferred that he was to stand while driving and that that was what the foreman intended.

An amended petition was filed, in which it is averred, among other things, that owing to the fact that the wagon was overloaded and that there was no seat or footboard, and no place for the driver to sit upon the wagon, and to drive from the wagon required the driver to get upon the shingles, which were wet and slippery and had been thrown upon the wagon in that condition, and were loose, and that when plaintiff suggested to defendant's foreman that he drive the team from the ground, the foreman ordered plaintiff "to get upon the wagon for the purpose of driving said team;" that in obedience to the order plaintiff got on the wagon and attempted to drive and that when he had driven a short distance, owing to the nature of the ground, some of the shingles slipped off, which frightened the horses and they immediately started to run away, and that plaintiff, endeavoring to hold them, the horses vicious and hard-mouthed, and owing to the fact that he was standing upon the wet, loose shingles, he was thrown and fell from the wagon and was run over by the wagon and badly injured. The negligence charged is "that the defendant, George Hilliard, through his foreman, Charles Hilliard, negligently ordered the plaintiff to get upon a wagon overloaded with loose, wet shingles on which his position was insecure and dangerous, as was known to defendant's foreman, and drive a team known to be vicious and liable to run away, when it was known to defendant's foreman that said team could have been safely driven from the ground."

The answer, after a general denial, averred contributory negligence and assumption of risk. To this there was a reply, and on trial before the court and a jury, a verdict in favor of plaintiff in the sum of $3,350 was returned, judgment following, from which defendant has duly appealed.

The aspect which the case would assume on a proper petition and as indicated by our court when the case was before us on the first appeal, was met by amendment and by the evidence and renders it unnecessary to make a very extensive discussion of it. As testified to by plaintiff, and of course he is entitled on an appeal and with a verdict, to every reasonable presumption in favor of his testimony, is, that after dumping out a load that he had had in the wagon, he picked up part of a lot of shingles and had loaded the lower bed and sideboards and was about to get in, when the foreman, Charles Hilliard, came around and said, "We will put them all on," referring to the shingles that were lying there; that to do that they stuck shingles edgewise in the bed all around and piled shingles in the middle up high, about 18 inches above the side, with loose shingles above the bed. These shingles were wet all the way through. The last ones loaded were muddier than the first because they were taken out of the manure; it was not wet, it was moist. They had been lying out in the mud and manure together. The foreman, still present and assisting, and the shingles loaded, plaintiff unwrapped the lines and started to drive from the ground. The foreman said, "Get up on the...