Partney v. Agers
| Decision Date | 15 May 1945 |
| Docket Number | No. 26708.,26708. |
| Citation | 187 S.W.2d 743 |
| Parties | PARTNEY v. AGERS. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jefferson County; Edw. T. Eversole, Judge.
Action by Louis Partney against A. J. Agers for injuries sustained by plaintiff when struck by defendant's truck. Verdict and judgment for plaintiff, and defendant appeals.
Reversed.
Wilbur C. Schwartz and Joseph Nessenfeld, both of St. Louis, for appellant.
Al F. Gerritzen, of St. Louis, for respondent.
This is an action for damages for personal injuries sustained by plaintiff when he was run into by defendant's truck. There was a verdict and judgment for plaintiff below, from which judgment defendant has appealed.
Plaintiff was employed as a roustabout by the Whaley & Scott Mining Company on the date of the accident, October 13, 1942, and had been so employed for about two years prior thereto. The accident occurred on the private property of Whaley & Scott Mining Company, where the mining company was operating a tiff mill. The property was situated immediately south of a public highway, which ran in an easterly and westerly direction. About 150 feet from the highway were two open bins, adjoining one another, and facing east. The north bin was used for the storage of tiff, and the south bin contained gravel. Both bins were set upon posts, so that trucks could back under them from the east, and could be loaded with tiff or gravel through openings in the bins. Altogether there were six of these posts, one at each corner, and two between the two bins, one in the front and the other in the back. The posts were 14"×14" and were set on concrete bases, which bases extended about 3 or 4 inches beyond the posts.
For the use of the trucks in driving up to the bins, the mining company had built upon their property a gravel roadway, which ran east and west and extended up to the bins. The roadway was used frequently every day by trucks owned by the Whaley & Scott Mining Company and by others, including the defendant. Defendant's truck made about six trips a day over this roadway. According to the evidence, a load was hauled along this roadway from the bins about once every hour and fifteen minutes.
It was the customary practice for trucks to be driven south onto the premises from the public highway, and then turned toward the east, brought to a stop 30 or 40 feet east of the bins, and operated backward at about two miles per hour over the gravel roadway toward and under the bins. The exact width of the bins was not shown by the evidence, but it would appear that when a truck with a body about seven and one-half feet wide was being driven under either bin, the truck had only about five or six inches clearance between it and the supporting corner posts. In backing into one of these bins, it was the customary procedure for the driver to put his head out of the left side of the door opening, and to look backward as he backed the truck, the object being to just barely miss striking the north post. If the north post was cleared by a few inches, the driver knew that he was safe on the other side. It was impossible for the driver to look at both posts at the same time, and to proceed as above indicated, according to the testimony of John Ackerson, who was a witness for plaintiff.
Plaintiff himself testified that it was impossible for the driver of a truck to see both posts while backing, unless he looked through the rear window of the cab. Joe Merseal, defendant's driver, and a witness for the plaintiff, testified that in backing his truck down the roadway in question, he could see only the top of the tiff bin through the rear window.
Plaintiff knew the usual procedure followed by truck drivers in backing under the bins. He and other workmen on the grounds knew that defendant's truck made several trips daily to the premises to haul tiff, and that other trucks also came onto the premises to haul material several times a day. It was common knowledge that trucks backed in there, since that was the only way for them to get under the bins. All truck drivers used the same procedure in backing under the bins. Plaintiff's witness Ackerson testified that none of the drivers, including himself, ever blew their horns when backing along this roadway toward the bins. The truck drivers did not expect people to be around the bins when they were backing their trucks in the manner indicated. There was no obstruction of any kind between the trucks and the tiff bins when the trucks backed toward the bins. The road is clear and open.
On the day in question plaintiff's employer, Mr. Scott, met plaintiff on the premises about noontime, and asked him to get a large chain. He also handed plaintiff a lunch, consisting of a sandwich and a botle of soda. Holding the sandwich and soda, plaintiff proceeded over to the gravel bin where John Ackerson, a truck driver employed by Whaley & Scott Mining Company, was seated in the cab of his truck eating his lunch. At that time Ackerson's truck was parked under the gravel bin, being loaded with gravel, the whole back end of the truck and about a third of the cab being under the bin. Ackerson told plaintiff, in response to his inquiry, that he did not have the chain and did not know where it was. Plaintiff was then standing next to the cab, while Ackerson was seated in the cab of his truck. While plaintiff was inquiring about the chain, Ackerson saw defendant's driver Joe Merseal drive onto the premises from the public road about 150 feet away, and turn east in front of the bins. At that time plaintiff did not see defendant's truck, nor did he hear it as it approached. The mills were operating and making a loud noise, and the gravel running into Ackerson's truck was also making a loud noise at the time.
Ackerson then got out of his cab, and plaintiff stepped back a foot or two to give Ackerson a little more room. Plaintiff stated that Ackerson got out of the truck about the time he walked up to it. At another point in his testimony he said that he stood by Ackerson's truck about a minute before Ackerson got out of his truck. Ackerson then picked up a bucket and began to pour water into the radiator of his truck. As he was doing this, he stood five or six feet to the southeast of plaintiff. Plaintiff stated that he stood there watching Ackerson for about two and a half minutes, and then was hit by defendant's truck as it backed into the tiff bin. Plaintiff did not see the truck as it backed toward the tiff bin. When he was asked to explain how he could have avoided seeing defendant's truck as it slowly backed at least 30 feet, he answered: "I guess I was interested in eating my lunch." No horn was sounded from the time defendant's driver started backing the truck up to the time of the collision.
On direct examination plaintiff testified that he stood about a foot or eighteen inches east of the center post, which separated these two bins, and about opposite the center of it. He stated that he stood in that position eating his sandwich from the time Ackerson got out of his truck.
He reiterated this testimony on cross-examination, and stated that as he stood there he could have been in the line of the truck, but did not think he was in front of or under the bin. He further stated:
Just before plaintiff was struck, Ackerson holloed "Watch out." On cross-examination plaintiff testified that when Ackerson holloed, he guessed he jumped backward something like one foot, and was immediately struck by the right rear side of the truck; that had he not jumped he would not have been apt to have been hit; that he was knocked between the bed of the truck and the post, and that just before the accident he might have been leaning against the post. He stated, "I would not say whether I was standing against it or east of it." After he so testified, the court adjourned for the noon recess. When the court re-convened, the following testimony was given by plaintiff on his second redirect examination:
Later, on second recross-examination, plaintiff (after denying that he had talked to anyone during the noon recess) testified:
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