Parsons v. Hammond Packing Co.

• Decision Date: 03 November 1902
• Citation: 70 S.W. 519,96 Mo.App. 372
• Parties: EDWARD B. PARSONS, Respondent, v. HAMMOND PACKING CO., Appellant
• Court: Kansas Court of Appeals

70 S.W. 519

96 Mo.App. 372

EDWARD B. PARSONS, Respondent, v. HAMMOND PACKING CO., Appellant

Court of Appeals of Missouri, Kansas City

November 3, 1902

Appealed from Buchanan Circuit Court.--Hon. A. M. Woodson Judge.

AFFIRMED.

Judgment affirmed.

Brown & Dolman for appellant.

(1) "It is well settled that the master may conduct his business in his own way and the employee knowing the hazards of his employment, waives the right to compensation for injuries incidentally resulting therefrom." Bradley v. Railway, 138 Mo. 293; (2) Whatever danger there was was perfectly evident to Parsons and was a risk assumed by him. Jackson v. Railroad, 104 Mo. 448; Thomas v. Railroad, 109 Mo. 200; Ring v. Railroad, 112 Mo. 220; Junior v. Electric Co., 127 Mo. 79; Lucy v. Oil Co., 127 Mo. 40; Roberts v. Telephone Co., 166 Mo. 378; Hunt v. Kile, 98 F. 49; Dredging Co. v. Walls, 84 F. 428. (3) That the box would slip off if the handles were raised too high, either by the act of Parsons himself or by a jolt in pulling the truck over the doorsill was a matter within the ordinary operation of the laws of gravitation which plaintiff was bound to take notice of and govern himself accordingly. Walsh v. Railway, 27 Minn. 367; Nugent v. Milling Co., 131 Mo. 253; Hill v. Drug Co., 140 Mo. 433; Hook v. Railway, 162 Mo. 567. (4) There is no evidence that the absence of the cleat on the end of the truck was in any way the cause of the injury complained of. The case, therefore, ought not to have been submitted to the jury. Plefka v. Knapp, 145 Mo. 316; Settle v. Railroad, 127 Mo. 336; Hicks v. Railroad, 46 Mo.App. 304; Guffey v. Railroad, 53 Mo.App. 462. (5) The court erred in giving to the jury plaintiff's instruction No. 1. Tabler v. Railroad, 93 Mo. 79; Bowen v. Railroad, 95 Mo. 268; Farrel v. Railroad, 115 Mo. 503; Grattis v. Railroad, 153 Mo. 380; Bohn v. Railroad, 106 Mo. 429.

W. K. Amick and Allen & Mayer for respondent.

(1) The risk incident to using the defective truck was not a risk of his employment. Herbert v. Shoe Co., 90 Mo.App. 305; Pauk v. Beef & Pork Co., 159 Mo. 467; Settle v. Railroad, 127 Mo. 336; Blanton v. Dold, 109 Mo. 64; Booth v. Railroad, 76 Mo.App. 516; Smith v. Coal Co., 75 Mo.App. 177. (2) There was substantial evidence showing that the boxes of ice on the truck did slip backwards on the truck because of the jarring over the thresholds; and because there was no cleat they slipped off the truck and unbalanced it and injured plaintiff. Sullivan v. Railroad, 107 Mo. 66; Herdler v. Range Co., 136 Mo. 3; Larson v. Mining Co., 71 Mo.App. 512. (3) Defendant complains of plaintiff's instruction No. 1. This instruction is a fair statement of the law as applicable to the facts in this case. Lewis, Admr., v. Railroad, 59 Mo. 945; Gibson v. Railroad, 46 Mo. 163; O'Mellia v. Railroad, 115 Mo. 205; Muirhead v. Railroad, 19 Mo.App. 634; Gibson v. Railroad, 60 Mo. 160.

OPINION

SMITH, P. J.

--This is an action to recover damages for personal injuries alleged to have been received by plaintiff in consequence of the negligence of the defendant. The substantive facts upon which plaintiff bases his right to recover may be gleaned from the allegations of his petition which are as follows:

". . .

"Second. That plaintiff was in defendant's employ and his duties were to pack ice about pork tenderloins in boxes. That the ice gave out and plaintiff was ordered by defendant's foreman, under whose control he was working, to take a certain truck, which he pointed out to plaintiff, and haul ice. That the truck was from five to seven feet long and two or three feet wide, was supported by two wheels two feet in diameter placed under the center; at one end was two handles and two legs underneath, just back of the handles to rest the truck on. That said truck was difficult to handle in hauling heavy loads of ice as it was difficult to keep the top of the truck in a horizontal position. That said truck was defective and in bad repair in this, that the piece of wood or iron two or three inches high, and as long as the top of the truck was wide, which was part of said truck and belonged on the top of said truck near the back end thereof and extended crosswise of said truck the full width thereof, and which should have been securely fastened to the top of said truck, was broken off and missing from said truck, so that there was nothing to hold the load in place and keep it from slipping off of the rear end.

"Third. That plaintiff had never been called upon before to haul ice with such a truck, as that was not a part of his duties. That hauling heavy loads of ice was difficult and dangerous work and required experience and skill in that work to do it with safety. Plaintiff had had no experience in that kind of work and was not familiar with the proper construction and operation of such trucks and was unaware of the dangers incident thereto. That plaintiff did not know that the truck was defective and out of repair, but that defendant's foreman had knowledge of that fact.

"Fourth. That in pursuance to the foreman's order the truck was heavily loaded with boxes of ice, about eight hundred pounds, and plaintiff taking hold of the handles started with it. That in the passage there was a threshold strip at a door and on either side of the threshold strip the floor was worn by the constant passage of trucks so that there were holes and depressions in the floor which jarred and jolted the truck so as to shake the load out of position. That the jolting of the truck over these holes and depressions caused the load to slip to the rear and as there was no stop or brace to hold the load in place, it slipped to the rear and off the end of the truck and cast the handles and plaintiff into the air, and plaintiff was thrown against a pickle vat and injured, by having his knee cap broken," etc.

The answer consisted of a general denial with which was coupled the plea of contributory negligence and the assumption of the risk.

At the conclusion of all the evidence adduced at the trial, the defendant requested an instruction in the nature of a demurrer thereto which was by the court denied. The defendant insists that the action of the court touching the demurrer was erroneous for two reasons: (1) because there is no evidence in the record tending to prove that the injury was caused by the absence of the cleat from the truck, nor to prove any connection between the defect in the truck and the injury, and (2) that the plaintiff in his employment assumed the risk incident to the use of the truck causing his injury.

These contentions must be determined with reference to the evidence disclosed by the record. Turning to it we there find that one O'Connor who was foreman in the "loin room" of defendant's packing house, employed the plaintiff to work in that room; that on the day of the injury while plaintiff was engaged in packing ice in boxes containing pork tenderloins the said foreman pointed his finger towards plaintiff and said to him "you come and go with me," and that accordingly plaintiff followed him through the pickle cellar out onto the dock where the trucks were lined up on the side of the wall, and where he met the dock boss to whom he said, "I want a truck," and the two bosses then walked up the line till they came to the truck here and the latter said to the former, "you can have this one," and thereupon the former turned to plaintiff and said, "you take this truck and go back into the loin room and put on those two boxes and get some ice and take it back into the loin room." The two iceboxes had handles and were placed on the platform of the truck end to end, occupying its entire floor. When the boxes were filled with ice they would weigh about 700 pounds.

The following diagram or representation of the truck is conceded to be correct:

[SEE ILLUSTRATION IN ORIGINAL]

After the plaintiff had placed the two boxes on the truck, he pulled it as directed by the foreman out on the dock and there filled the boxes with ice. There had at one time been a cleat or stay brace across the hind end of the floor or bottom of the truck. This consisted of a beveled strip of wood about one inch and a half thick by two and one-half inches wide, fastened down with screws, which had been broken off more than six months before the date of plaintiff's injury. The testimony for plaintiff showed that the stay brace or cleat was designed and used to hold and keep the load on the truck in its place.

The foreman himself testified, that the tendency of heavy boxes on a truck like this one, was to jolt and slip around and to go backwards. After the ice was loaded into the boxes the plaintiff in pulling the truck into the "loin room" had to pass from the dock through the outer door and then across the pickle room, then through the inner door leading into the "loin room." The thresholds of these doorways projected above the level of the floor an inch and a half, and the floor adjoining on either side of that of the inner door had been considerably worn away by truck wheels passing over it so that it was rough and uneven at that place.

When the boxes on the truck had been properly placed on it and filled with ice, plaintiff took hold of the truck handles with his back to the truck and then started on his way to the "loin room" as he had been ordered to do. When he reached the first threshold he pulled the truck over it and proceeded to the other, in passing over which the truck was jolted and the two iceboxes, having nothing across the back end of the platform of the truck to hold them, slipped backwards where their great weight caused the forward end to which the handles were attached and of which the plaintiff there had hold, to tilt up and thus carried plaintiff off his feet and...