Kallher v. Parker Washington Co.

• Decision Date: 01 May 1911
• Citation: 155 Mo. App. 372,137 S.W. 76
• Parties: KALLHER v. PARKER WASHINGTON CO.
• Court: Missouri Court of Appeals

137 S.W. 76

155 Mo. App. 372

KALLHER v. PARKER WASHINGTON CO.

Kansas City Court of Appeals. Missouri.

May 1, 1911.

1. EVIDENCE (§ 471)—OPINION EVIDENCE.

In an action by a servant against a master for injuries received in falling from a wagon, which was driven forward at the direction of the foreman, the foreman was asked whether when he told the driver to move up he apprehended any danger to the plaintiff, and also whether there was anything in the position of the plaintiff that made him think that he would be thrown off of the wagon. Held, that both questions were properly excluded as calling for opinion evidence.

2. MASTER AND SERVANT (§ 270)—EVIDENCE.

Where a paving company had been in the habit of partially unloading wagons filled with rock, and then having the drivers move up a few feet, and one of the men unloading was injured when the wagon was moved up, it was proper, in an action by the injured man, to exclude evidence that at other times no one had been injured.

3. MASTER AND SERVANT (§ 149)—INJURIES TO SERVANT—METHODS OF WORK.

A foreman in charge of a gang of men macadamizing a street called upon the plaintiff, who was one of the laborers, to assist the driver of a wagon to unload certain rock. After the rock was partially unloaded, the foreman, who was nearer to the plaintiff than the driver, called to the driver to move up, and, when the wagon was started, the plaintiff fell off. It appeared that plaintiff's hearing was good, and that he was closer to the foreman than the driver who heard the command. Held, that the foreman was not negligent, even though the plaintiff was tipping a rock from the wagon when the order to move was given, and that the plaintiff could not recover from the master.

Appeal from Circuit Court, Jackson County; Herman Brunback, Judge.

Action by Patrick Kallher against the Parker Washington Company. From a judgment for plaintiff, defendant appeals. Reversed.

Ball & Ryland, for appellant. Boyle & Howell, for respondent.

BROADDUS, P. J.

This was an action to recover damages alleged to have been caused by defendant's negligence. Plaintiff was a laborer, about 60 years of age at the time herein mentioned. On October 1, 1908, he was working for the company at Forty-Sixth and Tracy avenue in Kansas City, Mo. The company was engaged in macadamizing the street. A team of horses were hitched to the wagon, and, when it was driven near to the point where respondent was working, he was ordered by the foreman, Wilson, to get on and help unload the rock. We quote from plaintiff's statement of the occurrence: "And we had a portion of the rock moved, and I had a rock between my hands * * * in the action of throwing it off, when the team moved and I had no protection to save myself, and I was thrown off. I fell off down on the hard street on the back of my head. The back of my head struck the ground first, and knocked me senseless." He had only been working for the company four days breaking rock, and this was the first time that he attempted to unload; that the company had been unloading wagons right along while he was there; that part of a load would be unloaded at one place, then the wagon would be moved and unloaded in another place; that he was at the "hind end" of the wagon at the time, and that the driver whose name was Gibson was at the...