McTurman v. Bell
| Decision Date | 31 December 1965 |
| Docket Number | No. 8486,8486 |
| Parties | S. A. McTURMAN, Plaintiff-Appellant, v. Ervin BELL, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Briney, Welborn & Spain, Joe Welborn, James E. Spain, Bloomfield, for plaintiff-appellant.
Finch, Finch, Knehans & Cochrane, Jack O. Knehans, Cape Girardeau, for defendant-respondent.
S. A. McTurman suffered injuries when his fingers were cuaght in a sheave. 1 He sued and submitted on the theory that Ervin Bell, his employer, has failed to furnish him a safe place to work. Defendant offered no evidence but stood on his motion for judgment. A jury awarded plaintiff five thousand dollars. The court sustained defendant's motion to set aside and for judgment in accordance with the previous motion, and plaintiff has appealed.
On appeal the verdict-holder is entitled to benefit of all favorable evidence and inferences therefrom. However, a review of the evidence is not limited to isolated facts but embraces a consideration of all the evidence adduced by the plaintiff. Duke v. Missouri Pacific Railroad Co., Mo., 303 S.W.2d 613(1), and cases cited. Since there is some conflict in plaintiff's case, we must relate the facts in detail.
Plaintiff, fifty-eight years old, a self-styled farmer, had ten or more years' experience 'off and on' in the logging business. He had done logging for various persons and had engaged 'many times' in the operation of loading logs on trucks, unloading them, and loading them on sawmill ramps. He had used and was familiar with the use of sheaves, cables, chains, block and tackle, and teams as standard and customary equipment and operation in the logging business. Defendant Bell was a neighbor, but his business and experrience are not shown. He had some logs down in a field, and he employed plaintiff to help 'snake them out' and haul them to the mill. They had been hauling the logs to a custom sawmill operated by brothers Monroe and John Stevens, who were charging Bell twenty dollars per thousand for sawing his logs into lumber. Apparently the Stevens brothers also did their own logging and sawed lumber for themselves, because on an occasion shortly previous to the one here involved when Bell (and possibly plaintiff) had brought in a load of logs there was no room for them on the unloading ramp or skid. 2 According to plaintiff's witness Monroe Stevens, 'we had our logs on the skid and we had to throw them [he evidently meant customer Bell's] logs on the ground. * * *' 'Well you see there wasn't room on the ramp for them and we had to just throw them out on the yard.' He said, 'One load was throwed off right north of the ramp, and the others [the three logs with which we are involved] was around kind of northwest of the shed.'
On the morning of the accident, Bell and plaintiff went down to the field and loaded some logs on the truck. According to plaintiff's testimony, as they started to the mill Bell said, 'When we unload this load we'll load them other logs on where I can get them two by fours cut where I can start my shed.' When they got to the mill they unloaded onto the ramp. Then, according to Monroe Stevens (one of the two sawmill operators), 'he was in a hurry for them heavy timbers, and I told him if he would back his truck around there [by the pile of logs in the yard] me and my brother would load them with our team and bring them around there to the front and put them on the ramp where we could saw them and try to get his timbers ready for them.' Accordingly, Bell backed his truck around beside (south of) the logs which had been thrown on the ground northwest of the shed. John Stevens brought his team around, skids were placed against the side of the truck, chains were fastened to the logs, a cable was attached, and the horses pulled the first two logs up on the truck. Up to this point there is not much conflict. The loading operation was being conducted by the Stevens brothers. John was on the south side of the truck with the team, and Monroe was on the north side with the logs. Bell and plaintiff were there with Monroe; and, although neither was requested to do so (or to perform any other act in connection with the loading operation), they (Bell and plaintiff) helped Monroe put chains around the logs prior to the loading.
A third log was larger and heavier, and the horses had difficulty pulling it up the skids. Then the Stevens brothers got their block and tackle (or sheave and cable), which gave them 'double horsepower.' One end (on pulley?) was attached to a willow tree somewhere near a fence and south of the truck. (The Stevens brothers say they attached it, but plaintiff says he attached it although not requested to do so.) The horses were hitched to the cable or pulley (plaintiff insists that he held the doubletree for this), and the horses then pulled the log up the skids; but when they had the log up the side almost ready to roll on the truck, the horses reached the fence, could go no farther, and backed up a step. According to plaintiff's witness Monroe Stevens, 'one more little pull and it would have been upon it.' 'But the cable wouldn't go no farther on account of the fence, if they could they would have pulled the log on, it would get right up to the edge of the truck and they didn't have room to put it on top of it.' According to this witness, he, plaintiff, and Bell were still on the north side of the truck with the logs. When the horses got to the wire and started to back up, plaintiff said, "I'll run around and help him,' and he was gone, just like that.' Plaintiff went around on the south side of the truck. 'He [evidently meaning John Stevens] pulled the log up against and they [evidently meaning the team] couldn't go far enough, and when he backed up I heard him [evidently meaning the plaintiff] holler, the team started backing up and my brother pulled them up again to get his hand out, and then we let the log back down on the ground.' Plaintiff's witness, John Stevens, said that he was handling the team on the south, that the others, including the plaintiff, were on the north side. The horses got to the end of the fence He (plaintiff) was then on the south side of the truck 'where he shouldn't have been.' When plaintiff hollered, Stevens drove the horses forward again so that plaintiff could release his hand from the pulley wheel. Plaintiff testified that he was on the south side of the truck during the entire time after Stevens' block and tackle was brought out and held up the doubletree while John Stevens hooked to the cable. And then He said he hollered for John to pull the horses up and John did pull them up, and 'I got my hand out of the pulley.' He said the cable was over waist high; and he 'imagined' that he was about two feet from the cable while the horses were pulling it. He could give no explanation as to how his right hand got onto or was caught in the cable. There was no evidence that the cable swung, jumped, whipped, or otherwise misbehaved. The Stevens brothers were handling the loading operation. No one told plaintiff to do anything to help in the operation, but he did so. After plaintiff got his fingers out of the pulley wheel, Bell took him to a doctor; and the Stevens brothers went ahead and finished the loading while they were gone.
As we have stated, appellant's submission was on negligence of his employer in failing to furnish a safe place to work--this, we gather, because there was insufficient room to handle the loading operation; and this in turn because a fence, or at least the end of the fence, blocked the path of the horses, thus requiring them to stop their forward pull and causing them to step backward while there was still the weight of the log, and consequently a reverse pull, on the opposite end of the cable. We shall attempt to describe the premises. The shall attempt ran north and south. The loading ramp was along the east side. Somewhere on the west side of the shed a sawdust trough ran out to the west to a branch; along this trough ran the fence which blocked the further progress of the horses. The evidence does not show whether this trough and fence ran due west, southwest, or northwest. Neither do we know the length of the sawmill shed or the distance from the shed to the end of the fence where the horses stopped and stepped backward, nor whether there was room to go around the end of the fence. The logs to be loaded and presumably the truck parked beside them were northwest of the shed, but we are unable to find how far north and how far west. The whole record does not give any idea whatsoever of the distance from the loading operation at the truck to the end of the fence where the horses stopped.
For the purpose of this opinion, we will assume--without, however, deciding--that when plaintiff suffered his injury he was then acting in the capacity as an employee of respondent. We believe the plaintiff did not make a submissible case for several reasons.
First, in regard to whether the injury resulted from an unsafe place: The employer is not an insurer of the safety of his employees. Liability can result only from a failure to perform a duty owed. 35 Am.Jur., Master and Servant Sec. 121, p. 549; Russell v. St. Louis & S. F. Ry. Co., Mo.App., 245 S.W.2d 590(1); West's Missouri Digest, Master and Servant k101(2). And if the injury could have resulted from two or more inconsistent and equally inferable causes, and one is as probable as the other, and if the defendant is liable for one cause and not for the other then a finding that it resulted from either one must necessarily be based on conjecture and plaintiff's case must fail. 3
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