Hightower v. Edwards
| Citation | 445 S.W.2d 273 |
| Decision Date | 08 September 1969 |
| Docket Number | No. 54249,54249 |
| Parties | Otis HIGHTOWER, Respondent, v. Jess EDWARDS and Handley's Tri-County Gas & Fertilizer Company, a Corporation, Appellants. |
| Court | United States State Supreme Court of Missouri |
James E. Reeves, Ward & Reeves, Caruthersville, for respondent.
Manuel Drumm, Sikeston, for appellant, Jess Edwards.
Harold D. Jones, Bock & Jones, New Madrid, for appellant (Defendant) Handley's Tri-County Gas & Fertilizer Company.
A jury awarded plaintiff, employee, $10,000 for injuries suffered when he fell into a hopper of the fertilizer spreader he was operating. The spreader had been provided by his employer, defendant Edwards, and was owned by a fertilizer sales company, defendant Handley. Judgment against each defendant was reversed by the Springfield Court of Appeals, and having sustained plaintiff's application for transfer, we are to review the case 'as on original appeal.' Rule 84.05(h), V.A.M.R.
Since defendants present different assignments of error, for the sake of clarity, we will consider separately the contentions of each. While so doing, we must recognize that plaintiff, as the prevailing party, is entitled to have the evidence, including all favorable inferences therefrom, considered in the light most favorable to him, and to have defendants' evidence disregarded unless it aids plaintiff's case. Krug v. Sterling Drug, Inc., Mo., 416 S.W.2d 143.
Looking first to the appeal as presented by the employer, it is apparent there is little controversy between the litigants as to the facts giving rise to the case. They all center about or relate directly to the mechanism of the spreader or the manner of its use. It had two rubber-tired wheels supporting a metal platform ten feet in width, and with no power unit was designed as a trailer to be pulled behind a tractor. To the front and in the center of the platform a 150-gallon tank was mounted for the application of liquid fertilizer. Immediately behind this tank, slightly over a foot apart, were two identical metal hoppers placed side by side. In relation to the wheels, each was approximately 4 1/2 feet in width at the top. The front and back sides of both sloped inward to form a narrow trough at the bottom. A common rotating shaft extended through the trough of both tanks, and it was studded with 'steel fingers' which operated in the manner of an auger or agitator to prevent 'caking' of the dry fertilizer. From there the fertilizer was to pass through four flexible tubes to the ground. A metal lever extended upward between the two hoppers for use in closing or opening the outlets. On the rear of the unit, immediately behind the hoppers, a board, 2 by 12 , extended the full width of the spreader. It was on a near-level with the bottom of the hoppers. Since the hoppers were about three feet deep, the top of each would strike a man standing on the board at 'about waist high.' There were no protective screens or shields over the auger nor were there any 'hand-holds' for a person standing on the board other than the open edges of the metal hoppers. A decal, five inches in diameter, on each hopper warned: 'DANGER--Keep Hands Away From AGITATOR.'
Plaintiff's duties, as delegated by his employer, were not complicated. He was to 'walk this plank' or 'stand' on the board at the rear of the hoppers; cut off the flow while turning at the ends of the field; stir the fertilizer in the hoppers with his 'hands' if it became 'caked'; and to signal for a stop if any of the four distributing tubes became clogged. While performing these exact duties, the accident occurred and there is no conflicting evidence as to the details. Plaintiff said (that while at the roughest end of the field), '* * * I had to walk to the right end to see how it was, and it got so rough * * * I was trying to make my way to the center where I had a better way to stand, when if it pitched me it pitched me against that tank (for liquid fertilizer), and when I got there it throwed me forward and I caught with this hand, and then this hand missed.' He fell forward into the hopper where his right hand and forearm became entangled in the agitator necessitating loosening of the shaft to remove him. No claim is made that the verdict is excessive and we need not consider the evidence relating to plaintiff's injuries.
The defendant Edward's testimony is consistent with that of plaintiff, and specifically, as employer, he admitted: that he gave no warning concerning the operation of the spreader; that a person riding on the board would not have any handholds (except the rim of the hopper); that the spreader was being driven over rough ground; and, that he realized there was a likelihood a person riding on the board could become overbalanced and fall into a hopper.
The case presents no novel question of law, but only the proper application of well defined principles of the law of master and servant to the existing factual situation. The parties agree that an employer is not liable to his employee for injuries sustained in the course of his employment unless the employer was negligent, and that such negligence was the direct and proximate cause of the injury. To establish negligence, as such, it must be shown that the employer has breached some duty which he owed the employee. That duty demands the use of all ordinary care: 'To see that the place of work is reasonably safe; to see that suitable instrumentalities are provided; and to see that those instrumentalities are safely used.' Schaum v. Southwestern Bell Telephone Co., 336 Mo. 228, 78 S.W.2d 439, 442. As a corollary--the employer is not an insurer of the employee's safety. Nor must he provide appliances which are absolutely safe. Gardner v. St. Louis & S.F. Ry. Co., 135 Mo. 90, 36 S.W. 214, 216.
Defendant Edwards first contends he was not guilty of any negligence as a matter of law, or, in other words, that plaintiff failed to prove a submissible case of negligence. This argument is based primarily on the ground that the danger created by the lack of a protective screen over the revolving agitator was patent and as obvious to plaintiff as to the employer. From this premise, it is asserted that an employee cannot have a cause of action unless 'there (be) some amount of superior knowledge on the part of the employer.' With this broad conclusion we cannot agree, other than as it might pertain to the lack of necessity for a warning by the employer, if the facts show the employee not only knew of the danger but also appreciated the significance of it. The two cases cited by defendant Edwards on this point, Corby v. Missouri & Kansas Telephone Co., 231 Mo. 417, 132 S.W. 712, and Zeigenmeyer v. Charles Goetz Lime & Cement Company, 113 Mo.App. 330, 88 S.W. 139, do not hold that an employer's ignorance of or lack of an effort to ascertain a potential danger (regardless of the employee's knowledge) meets the demands placed on him by the law of master and servant. Although it is true, that in Corby, under facts unlike those of the instant case, the court did make a similar declaration when the servant's knowledge of the danger exceeded that of the master relating to duties 'depending solely upon the care and manner with which they were performed, and not upon any danger connected with or incident to the place in which they were performed * * *' (emphasis added), such is not the situation here. In fact, 'care and manner of performance' relate more to the later charge that plaintiff was contributorily negligent and the argument is neither persuasive nor relevant on the issue of defendant Edward's negligence.
Argument is also made that 'the rough ground over which the fertilizer distributor was being pulled was the intervening act which was the cause of Plaintiff's loss of balance and resulting injuries.' On this point, it is sufficient to say that the rough 'clods' in the field, obvious to all, could hardly be described as a 'new and independent' force which broke the causal connection between the original wrong and resulting injury. Seeley v. Hutchison, Mo., 315 S.W.2d 821, 826. The terrain was a necessary part of this project from its inception.
Further argument is made that plaintiff did not meet his burden 'to produce evidence that such protective screening is available and useable,' or that it was 'in use...
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