Munoz v. American Car & Foundry Co.
| Decision Date | 07 June 1927 |
| Docket Number | No. 19534.,19534. |
| Citation | 296 S.W. 228 |
| Court | Missouri Court of Appeals |
| Parties | MUNOZ v. AMERICAN CAR &, FOUNDRY CC. |
Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.
Action by Frank Munoz against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Arnot L. Sheppard and Watts & Gentry, all of St. Louis, for appellant.
Mark D. Eagleton and E. J. Hullverson, both of St. Louis, for respondent.
Plaintiff's action for damages for personal injuries resulted in a judgment in his favor and against the defendant in the sum of $1,850. After moving unsuccessfully for a new trial, defendant brings the case here on appeal.
Whilst the second amended petition upon which the case was tried contains three assignments of negligence, we are, on this appeal, concerned with the single assignment of negligence upon which plaintiff submitted his case to the jury, the charging part of which reads as follows:
"Plaintiff states that while he was engaged in unloading pieces of iron, together with other employees of defendant, from a large truck, due to the negligence and carelessness of defendant, a large piece of iron was caused to fall on plaintiff's foot and seriously injure him as a direct result of the negligence as follows: That defendant negligently and carelessly furnished plaintiff with employees to work with while unloading said truck and moving said iron who were negligent and careless, incompetent, ignorant, and inexperienced, and habitually careless and negligent, in that said employees would, without warning, move said pieces of iron on said truck without advising plaintiff thereof, and would attempt to lift large pieces of iron unassisted, and would disregard signals used in connection with said work, and would attempt to pry from underneath large pieces of said iron small pieces, so that they would not be required to engage in the carrying of the large pieces of iron, and who negligently disobeyed orders given in connection with said work, and that defendant, negligently and carelessly, retained said employees at work with plaintiff after having knowledge of the matters aforesaid, and that, due to the negligence as aforesaid, plaintiff suffered the following severe and permanent injuries. * * *"
Defendant's answer was a general denial.
The evidence discloses that plaintiff, a Spaniard, was working with Frank Reyes, a Mexican, engaged in unloading junk iron from a small push car about 6 feet long, the body of which was about 2 feet above the ground. At the time of the casualty the loaded truck stood in a north and south position, plaintiff standing a foot south of the north end of the truck and on the west side thereof, while Reyes was on the same side, but at the south end. The truck was loaded indiscriminately with pieces of iron of various kinds and shapes, and it was the duty of plaintiff and Reyes to take these pieces of iron from the push ear and carry them to a machine some 20 feet distant, where they were cut up by shears and remelted. Plaintiff and Reyes had been at work unloading this car for several hours, and had already' unloaded half of the iron from the car, and were then about to unload a piece of iron 4 feet long, 10 inches wide, and 2 inches thick, weighing some 400 pounds.
Plaintiff testified that he was reaching out to take hold of this particular piece of iron when he heard somebody shout, which caused him to turn around to see who it was, at which moment the piece of iron in question fell from its place on the ear, upon his left foot, injuring four toes thereof. Plaintiff did not know of his own knowledge whether or not Reyes had taken hold of the piece of iron which fell upon his foot, as his back was turned at the moment the piece of iron fell, but, over defendant's objection, plaintiff was permitted to testify:
That when Reyes started to remove the piece of iron from plaintiff's foot, he (Reyes) said he was
Plaintiff further testified:
That, at the time Reyes started to work for the defendant company, "he was a good worker, but that he was lazy, and did not like to do his work; that sometimes in the evening Reyes would go up and take a piece of iron and throw it away, that way [illustrating]; that sometimes Reyes would get up there and before another fellow could get a piece of iron he would pull it out, this way [illustrating], and sometimes pinch my fingers, and that, when Keyes unloaded a particular car, he just threw the pieces of iron; that he did not look around" before throwing them to see if anybody was there; that, when two of them were carrying a piece of iron, Reyes would let his end drop first; that he would pull a piece of iron and not see what he was doing and just throw it that way."
Plaintiff further testified that on one occasion their boss saw Reyes "careless" at his work and that the boss called him (plaintiff) to him, and said:
"Frank, go up and tell Frank Reyes not to be so careless with the work; that he work like the other men; if he don't, I will send him back to Mexico."
Of this occasion, in another part of his testimony, plaintiff testified that his foreman told him to tell Reyes:
This particular incident, according to plaintiff's testimony, occurred about a week prior to the day on which plaintiff met with his injury.
Plaintiff, in addition to his own testimony, adduced that of Dr. Edward B. Kinder, who testified to the nature and extent of plaintiff's injuries.
The foreman, or boss of plaintiff and Reyes, testified that Reyes was neither careless, negligent, nor incompetent; that he at no time told plaintiff to tell Reyes not to be so careless, and also denied that he told plaintiff Reyes was not doing his work properly.
Defendant offered one of its safety inspectors in the department in which plaintiff was injured as a witness, and sought to show by him that Frank Reyes, on the day plaintiff met with his injuries, was a captain in what is known in the company's plant as its safety committee. The court, upon objection, refused to admit such evidence; defendant saving its exception to the ruling, and offering to prove that the witness, as safety inspector, had authority and did appoint different workmen as captains of safety committees, whose duties were to look after the matter of increasing the safety of employees, and to advise with him and with the employees regarding the efforts that were being made to reduce the number of accidents, and that Frank Reyes was appointed a captain on this safety committee.
The defendant adduced testimony to the effect that, at the instance of the defendant, depositions of Frank Reyes had been taken, but that after the depositions had been transcribed, Reyes, though he had promised to come to the office of the attorney for the defendant to sign them, failed to do so, and, though the defendant sent out to the address given by Reyes, he was not to be found there, so that Keyes' depositions were not available for use at the trial, nor was the defendant able to find Reyes thereafter, though "he had been at the steel plant recently, within the last two or three weeks."
The defendant assigns as error that plaintiff's second amended petition fails to state a cause of action on the only ground of negligence upon which the case went to the jury, in that said petition nowhere alleges that Reyes was guilty of any negligence at the time plaintiff was injured. It is argued that nowhere does the petition plead that Reyes negligently or carelessly caused the piece of iron that struck plaintiff's foot to fall from the push car.
An examination of the record discloses that the defendant did not attack the sufficiency of the petition as to this assignment of negligence prior to the trial either by demurrer or by motion to strike out or to make more definite and...
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