Lampe v. American Ry. Express Co.

• Decision Date: 18 July 1924
• Docket Number: No. 17644.,17644.
• Parties: LAMPE v. AMERICAN RY. EXPRESS CO.
• Court: Missouri Court of Appeals

266 S.W. 1009

LAMPE v. AMERICAN RY. EXPRESS CO.

No. 17644.

St. Louis Court of Appeals. Missouri.

July 18, 1924.

Rehearing Denied December 31, 1924.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by Herman J. Lampe against the American Railway Express Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Watts, Gentry & Lee, of St. Louis, for appellant.

John F. Clancy and Foristel & Eagleton, all of St. Louis, for respondent.

BRUERE, C.

This is an action of tort to recover for personal injuries caused to the plaintiff, respondent here, by the falling of a large box upon him while employed in defendant's warehouse in the city of St. Louis. The trial resulted in a verdict in favor of the plaintiff for $15,000. The trial court ordered a remittitur of $9,000, which was entered, and a new judgment was entered in favor of the plaintiff and against the defendant for $6,000, and defendant has appealed.

The material allegations of the petition, in support of which evidence was introduced at the trial, and upon which the case was submitted to the jury, are that the defendant, at the time of the accident, was engaged in the general express business, and had one of its express warehouses or depots located near Twentieth and Clark avenues in the city of St. Louis, Mo.; that the plaintiff was in the employ of the defendant as a bill clerk and freight handler at its said warehouse or depot; that, while plaintiff was attempting to handle a large box containing a heavy steel or iron casting, the box fell and struck the plaintiff, and seriously and permanently injured him; that the defendant negligently and carelessly caused, suffered, and permitted said box to be placed on the floor on edge, and in such a manner that the box was likely to fall, injure, and strike the plaintiff in the course of his ordinary duties; that the defendant negligently caused, suffered, and permitted the box to be placed in such a manner that it was top-heavy, and was likely to fall immediately upon being touched, when the defendant, in the exercise of ordinary care, could have placed said box in such a manner that it would not be, top-heavy or likely to fall, as aforesaid; and that the defendant negligently and carelessly ordered, directed, and required the plaintiff to handle said box, and to attempt to move the same, when the defendant knew, or by the exercise of ordinary care on its part could have known, that said box was loaded with a heavy casting as aforesaid, and was placed in such a position that it was likely to fall, and when the defendant knew, or by the exercise of ordinary care on its part could have known, that the plaintiff in attempting to handle said box could not do so with reasonable safety to himself, and was likely to be injured by reason of said box falling, as aforesaid.

The answer admitted that the plaintiff, at the time of the accident, was in the employ of the defendant as a bill clerk, and that part of his duties consisted in handling boxes of various sizes. All the other allegations in the petition were denied. The answer further alleged "that whatever injuries, if any, were sustained by the plaintiff, on the occasion referred to in the petition, were caused by his own negligence directly contributing thereto in attempting to handle a long box which was standing upon end, and which contained a heavy iron or steel casting, without using ordinary care to ascertain the nature or weight of the contents of said box, and in failing to exercise ordinary care to prevent it from falling upon him while attempting to move it without assistance from any other person."

The errors assigned here relate to the refusal of the trial court to direct a verdict for the defendant to the giving of plaintiff's instruction No. 1, and that the verdict is excessive.

Briefly summarized, the facts disclosed by the record are: The plaintiff, a boy 21 years of age, was injured on September 9, 1920, about 7:20 a. m. He was employed by the defendant, at the time of the accident, as a sheet writer, and part of his duties consisted in handling and assorting freight. He had been so employed for 3 or 4 months prior to the day on which he was injured. On said day plaintiff was told by Mr. Boyd, defendant's foreman, to sort the freight in defendant's depot or warehouse. He proceeded to do said work, and was engaged therein for about 20 minutes when Mr. Boyd pointed to a long box and ordered him to get it out of the way. This box was 5 feet high, between 1 foot to 18 inches wide, 12 inches thick, and 739 pounds. The box was of unusual size and weight. It was standing on end and was top-heavy, practically all the weight being on top. There were no markings upon the box, except the name and address of the consignee. In obedience to the foreman's order plaintiff immediately took hold of the box, and tried "to get it around to put it on a truck," when it fell upon the plaintiff, knocked him down, and fell across his legs, severely injuring him. Three men lifted the box off of plaintiff. Plaintiff had not handled said box on any previous occasion. He did not know that the box was so placed that practically all the weight was on top, nor did he know the contents of the box prior to the accident.

It further appears that Floyd Sanguiette was working with the plaintiff at the time of the accident, and that the plaintiff called to him to bring a truck for the purpose of moving said box. Sanguiette had the truck in his hands, and was about 6 feet from plaintiff and moving toward the box when the accident happened. The plaintiff was facing east when he took hold of the box, and the box fell toward the west. When there was a box to be put on a truck, the way it was usually done was for the man with the truck, or the man helping him, to push the top of the box a little bit to one side so that the trucker could then slip the edge of the truck down under it, and then the box was either pulled over by the man handling the truck or, if it was too heavy for him to handle and hold the truck, the other man would pull it over onto the truck.

The crew to which the plaintiff belonged worked during the daytime. They went to work at 5 o'clock in the morning and quit at 1:30 o'clock in the afternoon. The box in question contained an iron casting. It was placed in the depot, in its said top-heavy position, by the night crew, who were truckers and employees of the defendant in another department, and were not subject to the supervision of plaintiff's foreman, nor was the plaintiff under the supervision of the foreman of the night crew. The truckers were cautioned by defendant's foreman not to place a top-heavy box on end on the floor, and it was the duty of the foreman in charge to see that said precaution was taken.

Mr. Boyd, defendant's foreman, testified that he had not given any orders of any kind to the plaintiff on the morning of the accident before the falling of the box upon him. The other, facts as stated were not contradicted by any evidence adduced at the trial.

In support of the contention that the trial court erred in refusing to direct a verdict for the defendant at the close of the whole case it is contended that the act of placing the box on end, in its top-heavy position, was the act of a fellow servant, for which plaintiff cannot recover. We do not think the fellow servant rule will defeat recovery in this case.

The law is well settled that it is the duty of...