Hildman v. American Mfg. Co.

• Decision Date: 06 March 1923
• Docket Number: No. 17630.,17630.
• Citation: 249 S.W. 99
• Parties: HILDMAN v. AMERICAN MFG. CO.
• Court: Missouri Court of Appeals

249 S.W. 99

HILDMAN v. AMERICAN MFG. CO.

No. 17630.

St. Louis Court of Appeals. Missouri.

March 6, 1923.

Rehearing Denied March 13, 1923.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

"Not to be on officially published."

Action by John Hildman against the American Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Percy Werner, of St. Louis, for appellant. Edw. W. Foristel and C. Mudd, both of St. Louis, for respondent.

ALLEN, P. J.

This is an action for personal injuries sustained by plaintiff while in the employ of the defendant corporation an its servant. The trial below, before the court and a jury, resulted in a verdict and judgment in favor of plaintiff for the sum of $5,000, and the case is here on defendant's appeal.

Plaintiff, a foreigner with little knowledge of the English language, wan injured on August 2, 1920, while in defendant's employ as a laborer and engaged in assisting in lowering a barrel of tar which had been placed upon another barrel on defendant's Premises. In a certain alley upon its premises defendant had stored barrels of tar, which, according to plaintiff's testimony, weighed about 500 pounds each. Some of the barrels were placed upright upon the ground, and upon the head of each thereof another barrel was placed in an upright position. It appears that the usual method of removing one of the upper barrels was by means of a skid, if there, was sufficient space to permit the use thereof. The precise nature of the skid used for this purpose is not shown by the evidence. When the skid was not used, the method employed fog removing one of the upper barrels from the barrel upon which it stood was to place a barrel, referred to as a buffer or bumper barrel, lengthwise upon the ground at the base of the lower of the two upright barrels; the buffer barrel being blocked by a wagon stake to keep it from rolling. The barrel to be lowered was then tipped forward, by hand, upon the buffer barrel. On the day of plaintiff's injury, plaintiff, defendant's foreman, and a third workman were engaged in undertaking to lower one of the barrel of tar thus standing upright upon another barrel, without the use of a skid but using a buffer barrel in lieu thereof. Plaintiff stood at one end of the buffer barrel, and at the other end thereof was defendant's foreman, one Dobanda, while the third workman, one Roeth, stood beside the upright barrels. When the barrel to be removed was tipped forward upon the buffer barrel, it rolled or slipped upon plaintiff, injuring him. There is a conflict in the testimony as to the circumstances attending the rolling or slipping of the barrel upon plaintiff.

Plaintiff testified that the buffer barrel was not blocked, and that when the barrel which was being lowered hit the buffer barrel the latter rolled away, causing the other barrel to fall and injure him. His testimony in this connection, as it appears in the narrative form in the abstract, is as follows:

"The barrel started rolling and hit the barrel you call the `bumper' barrel, and the bottom barrel rolled away and the other barrel fell on my leg. When the top barrel hit the bumper barrel, the bumper barrel rolled away and it just fell and hit my knee. The top barrel hit my knee, the barrel that was being taken off the top. At that time the bumper barrel was not braced or blocked in any way. The foreman said he was going to help me along; he was trying to help me along. The foreman didn't do anything. That was the second one we took down that morning. The foreman did not help us when we dumped it over. He was about four or five feet away, and when the barrel hit the bumper barrel, he ran away. There was no room for me to jump cut of the way. I was against the other barrel. The foreman was in the clear."

On cross-examination plaintiff testified that while he had worked in that department of plaintiff's business from January until August, 1920, this was the fourth time that he had handled barrels during those months; though defendant's evidence tends to show that be bad handled them more frequently. Plaintiff said:

"They cola put the skid on the side where the wagon would pass through. We used a skid three times."

He further testified that when the barrel slipped he had hold of it with Roeth, and it got away from him; and that the foreman, who did not have hold of the barrel, ran away. He said:

"The bottom barrel slipped and the top slipped and just fell over and hit my knee."

The testimony of defendant's witnesses, Roeth and Dobanda, is to the effect that the buffer barrel was blocked, as was the custom, "like you would block a wheel," by a wagon stake laid upon the ground, and did not roll, but that the barrel which was being lowered roiled or slipped from the buffer barrel toward and upon plaintiff.

Roeth testified, in substance, that when he tipped the upper barrel forward, plaintiff and Dobanda did not control it and "allowed it to get to one side," so that it came down upon the buffer barrel, not at the "bulge" midway between the ends thereof, but between the bulge and the end at which plaintiff stood; that the buffer barrel did not roll away, but tipped toward plaintiff, and the other barrel rolled from the buffer barrel upon plaintiff.

Defendant's foreman, Dobanda, testified that he blocked the buffer barrel; that he had hold of the barrel which fell, but that it started to slip towards plaintiff and he called to plaintiff to get out of the way because he could not hold it, but that plaintiff did not understand him. On cross-examination, he said that the buffer did not "slip;" that It was his business to block the buffer barrel with a stake, and if a stake was not there it was his fault; that he knew that the barrel was likely to roll if not blocked. He referred to the barrel which fell as weighing 400 pounds, and said that while three men were engaged in lowering the barrel, two men could perform the task.

The petition after alleging, inter anti., that the defendant failed to place a block or other device in front of the bumper barrel, avers that plaintiff's injuries were directly caused by the negligence of the defendant "In failing to use reasonable care to furnish plaintiff with a reasonably safe place in which to work, in this, in failing to have said bumper barrel blocked so that it could not move away," etc.

The assignments of error are (1) to the ruling of the court in refusing to peremptorily direct a verdict for defendant, and (2) in refusing to give instruction No. 1 offered by defendant. _There is a third assignment of error predicated upon alleged error in overruling defendant's motion for a new trial, but this assignment is too general to bring anything here for review.

The argument in support of the contention that defendant was entitled to a direct ed verdict appears to proceed in part upon the theory that plaintiff's injury was due either to mere accident or misadventure in the handling of the barrel, or to the negligence of those handling it; that the foreman was acting in a dual capacity, and in doing the manual work of helping to lower the barrel he was a mere colaborer with plaintiff; and that his negligence, if any, in doing such work, in failing to control the barrel, or otherwise, was the negligence of a fellow servant for which defendant is not liable.

It is quite true that the dual capacity doctrine invoked by defendant, appellant here, is firmly implanted in our master and servant law. Fogarty v. Transfer Co., 180 Mo. 490, 79 S. W. 664, 1 Ann. Cas. 136; McIntyre v. Tebbetts, 297 Mo. 117, 165 S. W. 757; Rigsby v. Oil Well Supply Co., 115 Mo. App. 297, 91 S. W. 460; English v. Rand Shoe Co., 145 Mo. App....