Hunter v. Busy Bee Candy Co.

• Decision Date: 13 April 1925
• Docket Number: No. 24999.,24999.
• Parties: HUNTER v. BUSY BEE CANDY CO.
• Court: Missouri Supreme Court

271 S.W. 800

HUNTER v. BUSY BEE CANDY CO.

No. 24999.

Supreme Court of Missouri. Division No. 1.

April 13, 1925.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

Action by Manuel Hunter against the Busy Bee Candy Company, a corporation. From an order overruling a motion to set aside an involuntary nonsuit, plaintiff appeals. Affirmed.

Wm. R. Schneider, of St. Louis, for appellant.

Lewis & Rice and Percy Werner, all of St. Louis (Foristel, Mudd, Hezel & Habenicht, of St. Louis, of counsel), for respondent.

SEDDON, C.

Suit for damages for personal injuries alleged to have been sustained by plaintiff while in defendant's employment. The substantive allegations of the petition are these:

"Plaintiff states that on or about the 9th day of July, 1920, and for several years prior thereto, he was in the employment of the defendant company, engaged in hauling candy by means of a horse and wagon from the defendant's factory in the city of St. Louis, Mo., to its various retail stores in said city; that in doing said work it frequently became necessary to push or pull out of the way automobiles which had been parked at the street curb in front of the place where plaintiff was required to unload the candy at the defendant's Broadway store; that when it became necessary to push or pull such automobile out of the way and plaintiff was unable, by the exercise of reasonable exertion to do so by himself, it was customary for plaintiff to request assistance from the defendant's manager in charge of said store, who would send a man to help plaintiff; that on the 9th day of July, 1920, plaintiff found it necessary, as aforesaid, in the course of his employment, to request, and he did request, the defendant's manager in charge of said store, to send a man to help plaintiff move an automobile which stood in the place where plaintiff was at said time required to place his wagon in order to unload the load of candy which he then had on his wagon, and was required by the defendant to unload at said place; that defendant's said manager failed and refused to provide the plaintiff with a man to assist him, and ordered and required plaintiff to move said automobile by himself. Plaintiff thereupon proceeded to comply with the said order, instructions, and directions of the defendant's said foreman or manager, whom he was required by the defendant to obey. And, while pushing said automobile out of the way, as he was directed, he suffered a rupture of a blood vessel in his brain as a direct result of the violent exertion occasioned by being required to do said work by himself and without assistance, as aforesaid. Plaintiff states that, as a result of said rupture of the blood vessel of his brain, the entire right side of his body became paralyzed and has so continued since July 11, 1920. Plaintiff states that his said injury and resultant paralytic condition was caused by and was and is the direct result of the carelessness and negligence of the defendant, first, in failing to provide the plaintiff with another man to help him do the work in which be was injured, as aforesaid, when the defendant knew, or in the exercise of ordinary care could have known, that it was dangerous and unsafe to require plaintiff to do said work by himself, and the defendant knew, or by the exercise of ordinary care could have known, that the plaintiff was unaware of said danger, and the defendant knew, or in the exercise of ordinary care could have known, that it required at least two men to move said automobile with reasonable safety; second, plaintiff's said injury and paralytic condition was directly caused by the carelessness and negligence of the defendant in failing to exercise ordinary care to furnish plaintiff with reasonably proper and necessary tools and appliances so he could, with reasonable safety, do the said work which he was required by the defendant to do, and in which he was injured, as aforesaid, in that it failed to provide the plaintiff either with a lever bar or sufficient man power, and, if either had been provided, plaintiff's said injury would have been "avoided; third, plaintiff's said injury and paralytic condition was directly caused by the carelessness and negligence of the defendant in ordering plaintiff to do the said work, in which he was injured, as aforesaid, in a way that was not reasonably safe, in that he was required to do it without either a lever bar or sufficient man power to assist him, which the defendant knew, or in the exercise of ordinary care could have known, was a dangerous, improper, and unsafe way to require plaintiff to do said work, and therefore likely to result in the injury plaintiff suffered, as aforesaid, and the defendant knew, or in the exercise of ordinary care could have known, that the plaintiff was unaware of said danger."

The petition prays damages in the sum of $65,000.

Defendant's answer was a general denial, and the following special defense:

"Further answering, defendant states that, if the plaintiff attempted to move an automobile as stated in his petition, and if plaintiff sustained injuries while so doing, or as a direct result thereof, the same directly and proximately resulted from negligence and carelessness of plaintiff contributing thereto, in this, that the plaintiff negligently attempted to push and move said automobile, and negligently pushed said automobile with too great force and effort, and negligently failed to refrain from straining himself, and defendant further states that the plaintiff fully and knowingly assumed whatever risk and danger there was in doing such work as aforesaid."

The reply was a general denial.

The facts relied upon by plaintiff for recovery may be best stated in his own words. On direct examination he testified:

"I am 58 years old. I was employed by the defendant, Busy Bee Candy Company, in St. Louis in 1920, driving a one-horse wagon, hauling candy from the defendant's factory to its Broadway store and its Sixth and Olive streets store. I was employed in that capacity for 6 years and 6 months. Mr. Schottgen, the defendant's general manager, gave me orders as to what work I was to do. He is located at the Seventh street store; that is his headquarters. When I went to the defendant company's Broadway store I was to take orders from Mr. Gibson and Mr. Sid Worth, the manager and assistant manager, so Mr. Schottgen told me. The Broadway store was on the west side of Broadway, fronting east; in front of it, coming up from the basement of the store through the sidewalk, was the elevator. The space through which the elevator would come up through the sidewalk was covered with shutters or doors when the elevator was not in use. When I would come around with a load of candy, and there was no automobile parked in front of the elevator, I would back up to the elevator, open the doors, roll the candy truck from the wagon onto the elevator, then punch the button for the porter down in the basement to come to the elevator and get off the goods. Very often there would be automobiles parked in front of the elevator. I would go and look the car over, and if I would see I couldn't make it I would release the brake, and I would ask for help to help me remove it. When I could release the brake and push the car myself I would push it away from in front of the elevator myself. When it was a big, heavy car and I could not get in to release the brake, I would ask for help—the manager or assistant manager at the Broadway store, whichever one I would come to first. Sometimes I would ask one, sometimes the other. Lots of times I went in and asked for help to push an automobile away from in front of the sidewalk elevator. On Friday afternoon, about 2:30, July 9, 1920, I drove up to the Broadway store with a load of candy, and there was a big, heavy machine standing in front, right where I had to get in to take off my load. I looked the machine over, and I thought it looked like it was too heavy for me to push down, and I went in and asked for help, and I went and asked the manager or assistant manager, I don't know which, for help, and he said I would have to do it myself, for they had to have the goods and he had no help for me. That was on Friday, which is the day they have their special sales at the Busy Bee Candy Company. I found out I couldn't get into the car to release the brake, and so I went in and asked for help. It looked to me like an electric coupe—a very heavy car— passenger car; it was glassed in all the way around. After the manager or assistant manager told me that they didn't have any help, I went back and backed myself up against it and commenced to push it, and I found out I could move it just by degrees, and so I kept on pushing and twisting it with my back, and I pushed it down about 10 feet so I could get in, and when I quit pushing it seemed like something just slapped me up against the side of the head. I used all my strength to push the car—all the strength I had. It took me about five minutes; I would just push a little bit at a time. After I quit pushing I had a feeling as if some one slapped me on the side of the head; my head felt dizzy; and my head went around and around, and I started to go to the wagon, and I stood there a few seconds—I don't know how long—but it seemed like if everything was turning real green and I was blind, and then I waited and backed the wagon to the elevator hole, and then it felt like my head was swelling, and I stood there a few seconds, and then I raised the door, and when I raised the door I punched the button for the porter to come and release and send the elevator up so I could take off my goods. All the time I had a severe headache. All that afternoon and all night and Saturday all day, and Saturday night and Sunday all day. Never slept any. I don't remember that I had any rest at all. I worked Friday afternoon and Saturday all day, but Sunday I didn't work none."

On cross-examination he testi...