Osby v. Tarlton

• Decision Date: 26 June 1935
• Docket Number: No. 32942.,32942.
• Citation: 85 S.W.2d 27
• Parties: OSBY et al. v. TARLTON.
• Court: Missouri Supreme Court

85 S.W.2d 27

OSBY et al. v. TARLTON.

No. 32942.

Supreme Court of Missouri, Division No. 1.

June 26, 1935.

Appeal from St. Louis Circuit Court; Arthur H. Bader, Judge.

Action by Dan Osby and another against G. L. Tarlton for personal injuries. From a judgment in favor of plaintiffs, defendant appeals.

Affirmed on condition of remittitur.

Carter & Jones and Richard S. Bull, all of St. Louis, for appellant.

Joseph A. Rogers, Wilbur C. Schwartz, and Charles E. Morrow, all of St. Louis, for respondents.

PER CURIAM.

Action for personal injury to plaintiff Osby. Verdict and judgment went for plaintiffs for $10,000, and unsuccessful in motion for a new trial, defendant appealed. Osby was, when injured, employed by plaintiff Westinghouse Electric & Manufacturing Company, which company and Osby were under the Workmen's Compensation Act. Osby was awarded compensation and he and his employer join in this cause to recover, under section 3309, R. S. 1929 (Mo. St. Ann. § 3309, p. 8244), against the defendant, a third party and the alleged wrongdoer.

Plaintiff Osby was injured by a trailer, drawn by a tractor, being operated at the time by defendant's agent. Plaintiffs alleged five separate grounds of negligence which in substance are: (1) That defendant failed to give a warning that the tractor and trailer were going to be moved at the time Osby was injured; (2) an alleged violation of the humanitarian rule; (3) that the operator of the tractor negligently started the same at a greater rate of speed than was reasonable under the circumstances; (4) that the defendant failed to have a man stationed at the rear of the tractor and trailer to keep a lookout and give warning of the movement and starting of the tractor; and (5) that defendant and his agent in charge of the tractor and trailer negligently failed to keep a vigilant watch to the rear of the tractor and trailer for persons or employees of plaintiff Westinghouse Electric & Manufacturing Company.

The answer is a general denial and a plea of contributory negligence on the part of plaintiff Osby, and a plea that whatever injuries plaintiff Osby received were caused by the negligence of the foreman of the Westinghouse Company, who, it is alleged, directed the driver of the tractor to move the same at a time when said foreman knew, or should have known, Osby was likely to be injured by the movement of the tractor, and at a time when the foreman knew, or should have known, that the driver of the tractor did not and could not see Osby, and did not and could not know that Osby was likely to be injured by the movement of the tractor and trailer. No reply appears to have been filed, but the cause was tried as though issue were joined on new matter in the answer.

Plaintiffs asked and the court gave no instructions for plaintiffs, other than one on the measure of damages. By withdrawal instructions given for the defendant, the court withdrew from the jury's consideration all assignments of negligence except the first one, which charge of negligence, as it appears in the petition, is as follows:

"That the defendant, his agent and servant, the operator in charge of said tractor and trailer, negligently failed to give a warning to Dan Osby that the said tractor and trailer were going to be moved at the time and place hereinabove mentioned; and negligently and carelessly failed to give a warning of his intention to start said trailer and tractor at the time on said driveway west of plaintiff's factory."

Defendant makes seven separate assignments of error, but these may be grouped as follows: (1) That the court erred in refusing, at the close of the whole case, defendant's instruction in the nature of a demurrer to the evidence; (2) in submitting the case to the jury without instruction as to what facts the jury must find before they could return a verdict for plaintiffs; (3) improper conduct of counsel; and (4) that the verdict is excessive.

For convenience, we shall hereinafter refer to the corporate plaintiff as the Westinghouse Company. Plaintiff Osby, when injured, was, as stated, employed by the Westinghouse Company, which company manufactured concrete electric light standards, or poles, at its plant, 3850 Bingham avenue, St. Louis. The poles, at least those mentioned in the record, were about 29 feet in length and were, at the base, about 30 inches square, and about 8 inches in diameter at the top. Defendant had a contract with the city of St. Louis to install electric light standards, and plaintiff Westinghouse Company manufactured these and delivered them to defendant at its factory. Defendant transported the standards from the plant on what plaintiffs call "old iron wheel log wagons" drawn by Ford tractors. The wagons are, in the record, most frequently referred to as trailers and we shall so designate them. The Westinghouse plant was on the south side of Bingham avenue and there was a concrete driveway about 18 feet in width along the west end. Defendant's employees, who delivered the standards to the places where they were to be installed, drove the tractor and trailer to the northwest corner of the plant and because of lack of space detached the tractor and by hand placed the trailer on the driveway along the west end of the plant. The tractor, when the trailer was loaded, was backed in and attached to the trailer, and when ready to go and when directed, the driver drove out north. The front and rear wheels of the trailer which injured Osby were 18 or 20 feet apart. The standards were loaded by an electric crane, two standards on each trailer, one with base end forward, and one with base end to the rear. When loaded, the standards on the trailer in question extended some 4 or 5 feet over the front and rear of the trailer. The tractor seat, occupied by the driver, was about 18 inches forward from the end of the standards, and when in the seat, the driver's head was lower, according to defendant's evidence, than the top of the forward ends of the standards. The standard with base end forward on the trailer that injured Osby was the west standard as loaded. The standards, when loaded, were secured so they would not slip on the bolsters in transit.

Did the court err in refusing to give defendant's peremptory request for a directed verdict at the close of the whole case? What may be termed the demurrer to the evidence, separately stated, covers Osby's alleged contributory negligence and the contention that there was no substantial evidence of negligence on the part of the defendant to justify a recovery under the first charge of negligence in the petition. Defendant requested and the court gave an instruction submitting the issue of contributory negligence, but defendant does not brief nor argue this question, hence it will be considered as abandoned.

Plaintiff Osby and other employees of the Westinghouse Company were engaged in washing concrete standards with a diluted acid solution and wore special clothes, rubber gloves, and goggles to avoid injury from the acid. The acid was in bottles and these bottles were in crates, estimated to be from 20 to 36 inches square, and these crates were placed on the outside and along the west wall of the building, and were immediately east of the trailer. It seems that there was one row of the crates on the east side of the driveway and against the wall of the building, and that there were a part of two other rows of crates immediately west of the row against the building. The width of the space between the west row of crates and the trailer was not definitely shown. Osby testified that this space was "pretty good room; it was roomy; enough for the wagon to miss the three rows of bottles." There was evidence tending to show that the width of this space was about 2 feet. Osby, according to his evidence, after the trailer was placed and loaded and after the tractor was attached and the driver in his seat ready to drive out when directed, came out of the building at a door in the west end thereof to get acid. He testified that "the front of the tractor was about even with the door" through which he came. He had a hand cart in which to put the bottles containing the acid, and, after coming out at the door mentioned, he turned south between the tractor and the west row of crates for the purpose of getting one of the bottles of acid, which bottles were rather large. He testified that "as I passed the driver, I caught his eye. He didn't say anything to me and I didn't say anything to him. After passing him, I walked on back until I got to a point four or five feet in front of the right rear wheel of the wagon. I had just gotten the bottle onto the hand truck; I had to lean over to get my hand on the bottle and the other hand on the handle of the truck." While Osby was bent over and was facing about northeast, the tractor started up and the right rear wheel of the trailer struck Osby's right hip, knocking him down, and the right rear trailer wheel passed over his left knee, causing the injury complained of. Before starting up, the right rear wheel of the trailer was 4 or 5 feet south of Osby.

Defendant's evidence tended to show that the driver of the tractor, when seated in the driver's seat, could not see Osby at the time the tractor started up without raising himself up in the seat, standing, so to speak, on the clutch, but according to plaintiff's evidence, the driver of the tractor could have seen Osby, had he leaned over in his seat and looked back. Osby testified that at the time the tractor started up there was nothing between him and the driver to obstruct the driver's view, had he looked back.

The concrete question is: Was there any duty on the part of the defendant to warn Osby that the tractor was about to be started? It is conceded that the driver of the tractor did not give any warning that he was about to start. The standards were inspected by the city inspector, and when he was satisfied with the standards...