Lunsford v. Macon Produce Co.

• Decision Date: 07 April 1924
• Docket Number: No. 14986.,14986.
• Citation: 260 S.W. 781
• Parties: LUNSFORD v. MACON PRODUCE CO.
• Court: Missouri Court of Appeals

260 S.W. 781

LUNSFORD v. MACON PRODUCE CO.

No. 14986.

Kansas City Court of Appeals, Missouri.

April 7, 1924.

Appeal from Circuit Court, Macon County; Vernon L. Drain, Judge.

"Not to be officially published."

Action by Bennie Lunsford against the Macon Produce Company. From a judgment sustaining plaintiff's motion for new trial after verdict for defendant, defendant appeals. Affirmed.

Walter C. Goodson, of Macon, for appellant.

Franklin & Van Cleve and John N. Franklin, all of Macon, for respondent.

TRIMBLE, P. J.

Plaintiff, a young man 25 years of age and in good health, was employed as a day laborer by the defendant, the Macon Produce Company. The latter is a corporation engaged at Macon in shipping poultry and dairy products, employing in the busy season about 50 or 60 men. One of its storage rooms or warehouses was located alongside and north of a switch track from the Burlington railroad, on which track cars were set for the use of defendant in loading and unloading its various products and shipments. Defendant maintained a platform, about 12 feet wide and 60 feet in length, alongside the switch, and over this platform grain, feed, poultry, etc., were carried by means of a hand truck, to and from cars on the switch, in unloading or loading shipments to or from defendant's warehouse. The top of the platform was about four or five feet high, the side and door of the car were about two feet distant from the edge of the platform, and the floor and doorsill of the car were from six inches to a foot higher than the platform. Hence to enable a truck to go from the platform to the car or to come from the car to the platform, it was necessary to use a bridge or causeway connecting the two. The defendant furnished this in the shape of a flat piece of metal about four feet long, slightly over two feet wide, and a quarter of an inch thick.

When a car was being loaded or unloaded, one end of this bridge rested on the floor of the car and the other end on the platform. When the bridge was thus in place, leading from the car door to the platform, of course the bridge slanted slightly down to the platform, and, to prevent the slipping of the lower end of the bridge on the platform and allowing the other end to come out of and away from the car, when a loaded truck was being drawn over the bridge down to the platform, two wooden laths, Such as are ordinarily used in plastering a house, were nailed (one on top of the other), to the platform, and the lower edge or end of the metal bridge rested against the laths as a stop or brace, when the bridge was in position to form a causeway from the car to the platform, or vice versa.

On September 16, 1922, while plaintiff was engaged in unloading a car of feed, by means of a hand truck over the above-mentioned bridge or causeway from the car to the platform, the brace or stop broke loose, allowing the bridge to slip on the platform and thereby recede from the car and let the end next to the car fall to the ground while plaintiff with his truck load was on the bridge, whereby he fell, and the whole fell upon and severely injured him.

He brought this action for damages, alleging that it was caused by defendant's negligence in failing to provide plaintiff with a reasonably safe place in which to work; and in ordering plaintiff to unload feed from said car when said bridge was wet, soaked, slick, and dangerous; and negligently failing to secure the bridge from slipping; in using wooden laths which were old, decayed, and worn from long use and exposure to the weather, and which were negligently nailed to the platform by small, inefficient, and rust-eaten nails, and in commanding plaintiff to do the work in the aforementioned manner and with the facilities aforesaid, which were inadequate, insufficient, and dangerous, and in not furnishing plaintiff with reasonably safe means, methods, and appliances to do his work in reasonable safety, and in not using ordinary care to protect plaintiff in any of the particulars above specified.

The answer was a general denial, together with a plea of assumption of risk and a further allegation that if he was injured, it was "caused by plaintiff's own carelessness and negligence in the manner in which he performed his work." This, of course, was intended to be a plea of contributory negligence.

The jury, by a three-fourths verdict, found for defendant; but upon plaintiff filing a motion for new trial the same was sustained by the court without giving any reason therefor. Whereupon defendant appealed.

It is well settled that, although the statute (section 1454, R. S. 1919) requires the trial court to specify the grounds on which a new trial is granted, its action in granting same without stating the grounds thereof, will not be thereby invalidated; and the appellate court, in reviewing such action, will consider any or all of the grounds specified in the motion for new trial. Lindsay v. Shaner, 291 Mo. 297, 300, 236 S. W. 319. Where the motion for new trial has been sustained, with no reason given by the court for so doing, and one of the points made by the motion for new trial is that the verdict is against the weight of the evidence, then the action of the trial court will not be disturbed by the appellate court unless there is no substantial evidence to justify a result contrary to the verdict, or unless the evidence of the party obtaining the new trial conclusively shows no verdict in his favor could be allowed to stand. Leavel v. Johnston, 209 Mo. App, 197, 200, 232 S. W. 1064; King v. Mann, 208 Mo. App. 642, 235 S. W. 506.

Since the new trial was granted, in the case at bar, without reason or ground therefor being stated, and since one of the grounds in plaintiff's motion for new trial is that the verdict is against the weight of the evidence, the chief question before us is whether there is any substantial evidence in the case to support a verdict in plaintiff's favor, or whether plaintiff's own evidence shows he is not entitled to recover.

Defendant contends that there was no negligence on the part of defendant shown; and furthermore that, if there was, the plaintiff was conclusively shown to he guilty of contributory negligence and hence its demurrer to the evidence should have been sustained.

It is doubtful whether we should spend any time over the question whether defendant's answer raised the defense of contributory negligence. The answer alleged that plaintiff's injuries, if any, were "caused by plaintiff's own carelessness and negligence in the manner in which he performed his work." It is not seen how this is any less the statement of a mere conclusion than the answer in Keppler v. Wells (Mo. Sup.) 238 S. W. 425, 428, which alleged that, if plaintiff therein was injured, it was "caused by his own carelessness and negligence in attempting to alight from a moving street car." Indeed, it would seem that the answer in the case at bar stated more nearly a pure conclusion than did the one in the case cited, for the answer in the latter might doubtless be construed as alleging that the contributory negligence consisted in jumping from a street car while it was in motion, whereas the answer in the case at bar merely said the negligence consisted in the "'manner" in which the work was done, without in any way specifying what that manner was. Nevertheless, the Supreme Court in the Keppler Case held that the answer was insufficient to warrant the giving of an instruction (No. 3) for defendant, submitting the question of plaintiff's contributory negligence in jumping from the street car while it was in motion, which was the very thing the answer set up as the basis of the contributory negligence an the case at bar, however, there was nothing in the answer to indicate what was plaintiff's "manner" of doing the work which was regarded as negligent, and therefore, under the ruling in the Keppler Case there was no basis whatever in the answer for the giving of defendant's instruction No. 2, which told the jury that—

"If you believe...