Modisitt v. Rozier Quarry & Mfg. Co.

• Decision Date: 06 November 1923
• Docket Number: No. 18429.,18429.
• Citation: Modisitt v. Rozier Quarry & Mfg. Co., 255 S.W. 715 (Mo. App. 1923)
• Parties: MODISITT v. ROZIER QUARRY & MFG. CO.
• Court: Missouri Court of Appeals

255 S.W. 715

MODISITT v.ROZIER QUARRY & MFG. CO.

No. 18429.

St. Louis Court of Appeals, Missouri.

November 6, 1923.

Appeal from Circuit Court, Perry County; Peter H. Huck, Judge.

"Not to be officially published."

Action by B. L. Modisitt against the Rozier Quarry & Manufacturing Company.Judgment for plaintiff.From an order granting a new trial, plaintiff appeals.Judgment affirmed, and cause remanded.

Chas. J. White, of Festus, for appellant.Edgar R. Rombauer, of St. Louis, Clarence L. Wolff, of Clayton, and C. J. Stanton, of Bonne Terre, for respondent.

BRUERE, C.

This is an action to recover damages for personal injuries suffered by plaintiff while in the employ of defendant as its servant.A trial was had before the court and jury, which resulted in a verdict for the plaintiff.Defendant in due time filed its motion for a new trial, which the court sustained "upon the grounds that the verdict of the jury was against the evidence and the greater weight thereof."From the order sustaining the motion and granting a new trial, the plaintiff has appealed.

The petition, in substance, avers that on the 13th day of June, 1918, plaintiff was employed by the defendant at its plant as a carpenter, and, in obedience to the order of defendant, was waiting to assist in raising a certain drill from a lower to a higher place in defendant's quarry, and, while so engaged, defendant, its agents, and employees negligently and carelessly caused to be dropped and rolled a large stone upon the right leg of plaintiff, which stone caused plaintiff's leg to be broken, crushed, and mashed.

The evidence adduced by the plaintiff, pertaining to the cause of the accident, disclosed that the plaintiff, at the time of his injury, was working for the defendant as a carpenter, and, in obedience to the order of defendant's foreman, went with six men, all employees of the defendant, to the top of a ledge in defendant's quarry to assist in moving a drill; that, after plaintiff and his coworkers had reached the ledge, plaintiff started up an embankment, ten or twelve feet high, to take hold of a line which was being used to move the drill; and that one or two men were ahead of plaintiff when a rock in the embankment became dislodged and rolled down the embankment and struck and broke plaintiff's leg.

The evidence on the part of the defendant tended to show, that no one ordered or directed the plaintiff to come up the embankment, and that there were no employees upon it ahead of the plaintiff.Said evidence further shows that the plaintiff, in going up the embankment, placed his hand on the rock (which was' about two feet square) to pull himself up, and thus caused the rock to become dislodged and to roll down on his leg.

We find no error in the action of the trial...