Johnston v. Sel-Mor Garment Co.

• Decision Date: 08 August 1978
• Docket Number: No. 38931,SEL-MOR,38931
• Citation: 571 S.W.2d 691
• Parties: Russell JOHNSTON, Plaintiff-Appellant, v.GARMENT COMPANY, Defendant-Respondent. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 691

571 S.W.2d 691

Russell JOHNSTON, Plaintiff-Appellant, v. SEL-MOR GARMENT COMPANY, Defendant-Respondent.

No. 38931.

Missouri Court of Appeals, St. Louis District, Division Three.

Aug. 8, 1978.

Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.

Application to Transfer Denied Nov. 6, 1978.

Mogab & Hughes, Larry W. Glenn, St. Louis, for plaintiff-appellant.

Ralph C. Kleinschmidt, Evans & Dixon, St. Louis, for defendant-respondent.

WEIER, Judge.

This is a common law action for personal injury brought by Russell Johnston against his employer, Sel-Mor Garment Co. Plaintiff's injury to his back was alleged to have occurred during the course of his employment. A jury awarded the plaintiff $50,000 but the trial court set aside the judgment thereon and sustained the defendant's motion for a judgment notwithstanding the verdict. Plaintiff filed an appeal and we now affirm the trial court's disposition.

Russell Johnston was hired on December 27, 1973, as a material handler in the shipping department of Sel-Mor Garment Co. His duties included moving boxed rolls of cloth from stacks in the shipping department on the second floor to a conveyor belt. More specifically, after an order is made for a roll of the piece goods, the handlers were to pull the appropriate box off the stack, let it drop to the floor, lift up one end of the box so that it is in a vertical position, place a "two-wheeler" (from the photographic exhibits, this is a "hand truck") underneath it, and push it over to the conveyor belt. This was the method of work used to move the boxes. As plaintiff stated in his testimony on direct examination: "That's the way it was shown. That is the way they always did it."

On September 25, 1974, plaintiff was instructed to deliver a certain box which weighed approximately 250 pounds. Without seeking help, he pulled the box of piece goods off the pile in which it was stacked and it fell to the floor. Squatting down, the plaintiff picked up one edge of the oblong box to lift it up on its end, positioning it to be moved on the "two-wheeler." After elevating the end of the box about three feet off the ground, plaintiff felt a sharp pain in his back. After complaining to his foreman, the plaintiff was sent to a clinic where he was examined by a doctor. He continued to experience sharp pain in his back, thighs and legs.

Plaintiff's injury was described by his neurologist as a herniation of the lumbar intervertebral disc. He had a congenital abnormality of four lumbar vertebrae instead of the usual five. This condition was aggravated by his injury and caused pain because of nerve root compression. The plaintiff after the injury would not be able to engage in heavy lifting.

The trial court sustained the defendant's motion for a judgment notwithstanding the verdict on three grounds: (1) the plaintiff failed to prove actionable negligence by the employer; (2) under the evidence submitted the plaintiff implicitly assumed, as a matter of law, the risk of an injury such as he sustained; and (3) the plaintiff failed to prove any facts which would entitle him to a recovery against the employer. On appeal the plaintiff-appellant contends the trial court erred in entering a judgment for defendant because evidence was produced at trial showing that there was negligence by the employer in either failing to provide adequate help, i. e., more workers to transport the box from the floor to a position where it could be moved, or in failing to provide the mechanical means to safely move the box from the stack to the "two-wheeler."

On appeal from the trial court's action sustaining a defendant's motion to set aside a judgment for plaintiff and to enter judgment for defendant notwithstanding the verdict, the evidence must be viewed in a light favorable to plaintiff and the verdict should not be set aside unless there is no room for reasonable minds to differ on the issues, in the exercise of a fair and impartial judgment. Gregory v. Robinson, 338 S.W.2d 88, 91(1) (Mo.banc 1960). The defendant's evidence is disregarded except as it may aid plaintiff's case and plaintiff is afforded all reasonable inferences to be drawn from the evidence not in conflict with plaintiff's case. Russell v. Russell, 540 S.W.2d 626, 631(3) (Mo.App.1976). To make his case, however, plaintiff must remove it from the field of conjecture and doubt and establish it by substantial evidence of probative value. Kaelin v. Nuelle, 537 S.W.2d 226, 233(7) (Mo.App.1976).

In order for an employee to recover in Missouri under common law negligence, ¹ more than mere injury must be shown. In innumerable cases, appellate courts of this state have detailed the duty owed by an employer to an employee. The test is relevant and here its delineation by the Supreme Court of Missouri bears repeating.

"(A)n 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...