Landcaster v. National Enameling & Stamping Co.

• Decision Date: 10 January 1928
• Docket Number: No. 20111.,20111.
• Citation: 1 S.W.2d 238
• Court: Missouri Court of Appeals
• Parties: LANDCASTER v. NATIONAL ENAMELING & STAMPING CO.

1 S.W.2d 238

LANDCASTER v. NATIONAL ENAMELING & STAMPING CO.

No. 20111.

St. Louis Court of Appeals. Missouri.

January 10, 1928.

Rehearing Denied January 24, 1928.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action for personal injuries brought by Ben Landcaster against the National Enameling & Stamping Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Thomas P. Moore, of St. Louis, for appellant.

Douglass & Inman, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries, sustained by plaintiff, an employee of defendant, on December 21, 1925, when a truck, constructed so as to run upon a narrow gauge track, was caused to move against or upon his right foot. The verdict of the jury was for plaintiff, in the sum of $2,000, and, from the judgment rendered in conformity therewith, defendant has duly appealed.

Two alleged acts of negligence were pleaded and relied upon by plaintiff, namely, that defendant negligently failed to give plaintiff timely and adequate warning that a truck was to be moved over the track, and against the one which plaintiff was engaged in unloading; and that defendant negligently caused or permitted a truck to be detached from the tractor, which furnished the motive power, and run into the plant, and over the track on which plaintiff was working, with no means afforded for controlling the movement of the truck.

The answer was a general denial, coupled with a plea of contributory negligence, which was put at issue by the reply duly filed.

The evidence disclosed that plaintiff had been in defendant's employ for approximately three months when his injuries were received, performing the duties of a common laborer; his principal work being that of moving material that was intended to pass through the rolling mill. A small track, constructed in much the same manner as a railroad track, led from outside of the building to the point inside where plaintiff was required to work, over which trucks, 4 or 5 feet in length, 3 feet in width, and 18 inches in height, were pushed by a tractor, operated by another employee of defendant, named Poloskie. It appears that the practice was for the tractor to push the trucks only to the door of the building, some 50 feet from the point where plaintiff's duties required him to be; and that thereafter the trucks, having been released, would be left to run of their own momentum down the slight grade or slope to the desired location, where they would be stopped by means of a block of wood placed under one of the wheels by a member of the unloading crew.

Upon the occasion in question, three trucks had been thus stopped at a designated point, and plaintiff was engaged in unloading the first one, or the one farthest from the door through which the trucks had entered. The remaining two trucks were so stationed that from the rear of the third truck to the door was a distance of 10 or 12 feet. Plaintiff's task at the time was that of removing iron bars, weighing about 50 pounds each; and, in doing so, he stood at the south end of the truck, and placed the bars upon stacks which were being built up on the west side of the track. In the performance of this work, he frequently placed his foot upon one of the rails of the track so as to secure space in which to move the bars; and, in fact, he was permitted to testify without objection that, at the moment of his injury, it was necessary that he have his foot in such position. While he was so situated, a fourth truck was pushed into the building by the tractor, and allowed to run down the incline, striking the third truck, and causing each truck in turn to be moved forward, with the result that plaintiff's foot was caught under the wheel of the first truck, and was severely injured.

Plaintiff testified that it was customary for the operator of the tractor to sound a horn before a truck was pushed into the building, and that he always listened for such warning, although he heard none upon this particular occasion. He admitted that if he had known that the fourth truck was to be brought in, he would have had room to have stepped back to a place of safety; and also that, had he been looking towards the door, he could have seen the truck approaching in time to have avoided being injured. He explained his obliviousness to the danger, however, by stating, not only that he had received no warning of the truck's approach, as we have shown above, but also that he was engrossed in his work of stooping over to remove the bars, so that he did not maintain a watch towards the door.

The first point urged for reversal is that it was error to refuse the peremptory instruction in the nature of a demurrer to the evidence, requested by defendant at the close of the whole case. The argument advanced by defendant is twofold: First, that plaintiff's own negligence directly contributed to bring about his injury; and, second, that the facts of this case were such as to bring it within the application of the fellow-servant rule.

Upon the issue of contributory negligence, defendant suggests that plaintiff failed to look for approaching trucks, although he was in a position to have seen the truck, which ultimately caused his injury, in time to have removed his foot from the rail; and that he stepped upon the track when it was not necessary for him so to do, although he knew that trucks were operated over it.

Considering these points in their inverse order, it is apparent that plaintiff's own statement that it was necessary for him to have his foot on the rail, which did not occur to learned counsel for defendant as being objectionable when the question was asked, is a sufficient answer to the latter contention, when the evidence is viewed, as it must be on demurrer, in the light most favorable to plaintiff.

As to the first suggestion, suffice it to say that defendant had recognized that plaintiff's work was attended with danger, in the absence of notice to him of approaching trucks, as is shown by the fact that the practice of sounding a warning had been adopted as a means of obviating the danger, and that plaintiff had the right to assume that defendant would not imperil his safety by permitting the car which he was engaged in unloading to be struck by other cars, and moved, without the giving of such warning to him. Such being true, the insistence that reasonable minds could not differ as to the legal effect of plaintiff's conduct, and that he should be held guilty of contributory negligence as a matter of law because he did not happen to see the approaching car, when the same was pushed in without the giving of the customary warning upon which he had the right to rely, is clearly untenable. Koerner v. St. Louis Car Co., 209 Mo. 141, 107 S. W. 481, 17 L. R. A. (N. S.) 292; Johnson v. Waverly Brick & Coal Co., ...