Kinser v. Cock Paint & Varnish Co.

• Decision Date: 05 March 1923
• Docket Number: No. 14586.,14586.
• Citation: 249 S.W. 447
• Court: Missouri Court of Appeals
• Parties: KINSER v. COCK PAINT & VARNISH CO.

249 S.W. 447

KINSER v. COCK PAINT & VARNISH CO.

No. 14586.

Kansas City Court of Appeals. Missouri.

March 5, 1923.

Rehearing Denied April 2, 1923.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by J. H. Kinser against the Cook Paint & Varnish Company., Judgment for plaintiff, and defendant appeals. Reversed.

Morrison, Nugent, Wylder & Berger, of Kansas City, for appellant.

Davis & Woodruff, of Kansas City, for respondent.

TRIMBLE, P. J.

Defendant appeals from a judgment in the sum of $1,000 rendered against it for personal injuries sustained by plaintiff while in its employ.

For two weeks prior to the injury, which occurred on July 3, 1920, plaintiff had been employed in defendant's factory as a laborer engaged in hauling or transporting boxes of paint and other materials from one place to another at said plant by means of what is known as a "hand freight truck." Its body or frame is about 3½ or 4 feet long and 2 feet wide, having a handle at each of the two rear corners and a short leg thereunder, while at each of the two front corners is a small wheel about 6 inches in diameter, so that when the body of the truck is level it is supported at the rear by the legs and in front by the wheels. It is operated by a person seizing the handles and raising the rear end of the truck and pushing the same on the two front wheels just as one operates a wheelbarrow. Across the front end of the truck is a blade or flange so inclined that, when the truck is tilted up with the flange lying flat on the ground, the body of the truck is inclined at about an angle of 60 or 75 degrees. In loading a box or other object on the truck, the operator pushes the truck up to the object, raises the truck until the flange is flat on the floor next to the bottom of the object, and the operator then pushes or inclines the object away from him slightly at the top, thus raising it somewhat at the bottom next to him so as to permit the insertion of the flange under it for a few inches, and then the truck's rear end is lowered slightly, and the load is caused to come over onto the truck in position to be then wheeled, as one propels a wheelbarrow, to where it is desired to be transported. As stated, plaintiff had done this kind of work for two weeks prior to his injury, and during this time had hauled boxes of paint and also boxes of other articles in this way.

The injury occurred between 7:30 and 8 o'clock in the morning. There were 30 boxes of paint, arranged 3 in a pile, to be hauled out from where they were to a freight truck for shipment. Each was 24 inches long, 14 inches wide, and 8 inches high, and contained 6 gallons of paint. Plaintiff and a man by the name of Horner, each with a hand truck, were engaged in hauling these boxes on the hand trucks, taking one pile of 3 boxes at a load. They had disposed of all except 3 piles of 3 boxes each. Brown, the shipping clerk, was assisting in the work by standing on the opposite side of the pile from that on which the hand truck approached, and when the trucker presented the flange of his truck at the bottom of the pile, Brown would pull the top thereof slightly toward him, thus raising the pile slightly at the bottom where the flange was so that the trucker could insert the same under the pile, and then the pile would be inclined or pushed toward the truck and rest thereon, after which the trucker would wheel the pile of 3 boxes out to the shipping truck. Brown did his part of the work for each of the two men as each alternately presented his truck for a load.

Plaintiff presented his truck as usual to a pile of boxes which Brown had tilted slightly back toward himself. Plaintiff inserted the flange of his truck under the pile at the edge next to him and put his left foot against one of the wheels or the axle thereof, evidently to keep the truck from rolling back when the weight came against or upon it. When the flange had been inserted and plaintiff's left foot was in this position, the pile was then pushed over toward the truck. The pile was, as plaintiff says, "a little heavier" than usual, and when its weight came upon the truck the same was forced or slipped out of plaintiff's grasp and came down to the floor, throwing plaintiff down and catching and injuring his foot.

The petition charges that Brown was defendant's 'foreman, and that he directed plaintiff to assist him in transporting said boxes, and that plaintiff was directed by said foreman to use said hand truck in the manner aforesaid; that said foreman took hold of the boxes and tilted them so plaintiff could insert the end of the truck under the boxes as tilted, and when this was done the foreman pushed the boxes onto the hand truck which plaintiff was holding. The petition further alleges that plaintiff had been employed only 12 days and had no special experience in the work he was doing and was following the foreman's directions as to the manner and method of doing the work.

The negligence charged was that, unknown to plaintiff, the 3 boxes that fell contained a heavy quantity of paint, making the combined weight of said boxes such that it was not reasonably safe and prudent to push said 3 boxes onto said truck while plaintiff was holding it, the weight of the same being greater than a man of ordinary strength could hold with reasonable safety; that other boxes transported...