Pearson v. Kansas City

• Decision Date: 16 November 1934
• Docket Number: 32212
• Citation: 78 S.W.2d 81
• Parties: PEARSON v. KANSAS CITY
• Court: Missouri Supreme Court

78 S.W.2d 81

PEARSON v. KANSAS CITY

No. 32212

Supreme Court of Missouri, First Division

November 16, 1934

Rehearing Denied December 21, 1934.

George Kingsley, City Counselor, and Lambert O'Malley and John J. Cosgrove, Asst. City Counselors, all of Kansas City, for appellant.

Clif Langsdale, of Kansas City, for respondent.

OPINION

HYDE Commissioner.

This is an action for damages for personal injuries. Plaintiff's leg was crushed by a falling tree while he was an employee of the Kansas City Park Department. Plaintiff recovered a verdict for $ 10,000, and, from the judgment entered thereon defendant has appealed.

Plaintiff alleged a negligent order of the defendant's superintendent for completing the work of felling a forked or twin tree. Defendant's answer set up assumption of the risk and contributory negligence. Defendant offered no evidence and makes no claim that plaintiff failed to make a case for the jury, but assigns error only in regard to instructions and the excessiveness of the verdict. Plaintiff's evidence tends to show that he was ordered with another workman to cut down the tree which stood on a very sloping hillside. This tree had two forks branching out from the trunk three or four feet above the ground. These forks started up together, touching each other 'bark to bark' above the crotch of the tree for some little distance to where one fork had grown leaning to one side and the other continued in a more nearly upright position. The foreman ordered the men to first saw off the fork which was the straightest. The weather was cold and there was snow and ice on the ground. The tree was frozen and full of frost which made it brittle and likely to break off quickly. The men were working with a crosscut saw, and plaintiff was working on the downhill side of the tree. The foreman had plaintiff and his fellow workman saw through the trunk of the tree below the crotch, where it was about four feet in circumference, to a point where the fork under which they were sawing lacked only about two inches of being completely sawed through. The foreman then had the men get out of the way and he undertook to split off this fork by driving wedges between the two forks with a sledge. While the foreman was attempting to do so, the superintendent came up and told the men to saw down in between the fork. The superintendent said that the wedges were not doing any good and 'he thought it would be a good idea to have the boys saw down through the crotch of that tree.' The foreman said that he would have gotten it down with his wedges, but that he considered that the superintendent had taken the job away from him, and he got off and left the job to him.

The superintendent said that he expected the fork to go quickly; that the first indication that a tree is going to fall is when the top branches begin to shiver; that he was watching to see when it would start to tremble so as to warn the men, but turned and walked over to his truck to tell the driver to move it so that the tree would not fall on it; and that as he turned and was walking to the truck the tree fell. The men had only sawed a few inches into the crotch when the tree kicked or skidded off the stump and struck plaintiff. The plaintiff described it as being 'quicker than your eye.' His fellow workman said that 'it just popped off'; that they were too close to the tree to see it falling and had no time to run. He said he had worked in the timber all his life and 'that you won't find one in a thousand that will kick off that way.' He said: 'This is the first time I ever seen one jump off and make no noise, because the tree was sawed nearly off and then when it was split down between it had nothing to break off. It only had that little two inches and, of course, that would not make much more noise than breaking a match.' Plaintiff had worked for the park department several years, but said that he had only cut down about a dozen trees during that time.

Defendant assigns as error the giving of plaintiff's instruction No. 1, as follows: 'The court instructs the jury that if you find and believe from the evidence that the defendant's superintendent ordered and directed plaintiff to assist in sawing the tree as mentioned in the evidence, at a time when the said superintendent knew, or by the exercise of ordinary care would have known, that the tree had been sawed to a point where a compliance with said order and direction, if any, might and would cause said fork to fall and strike plaintiff and injure him, if so, and if you further find that the defendant negligently failed to observe the progress of the said sawing and to warm plaintiff of the falling or the approaching falling of said fork in a reasonable time before said fork fell and struck plaintiff, if so, to have permitted plaintiff by the exercise of ordinary care, to get out of the way of said fork, and avoid being struck thereby, if so, and if you further find that the said negligence, if any, caused said fork of said tree to strike and injure plaintiff, then your verdict will be for the plaintiff, unless you further find that the plaintiff was guilty of some act or acts of negligence which contributed to cause his injuries, if any.'

Defendant says that there is no evidence upon which to base submission of the proposition that a compliance with the superintendent's order to saw down through the trunk would cause the fork to fall and strike plaintiff, and that the instruction is in this respect broader than the evidence. Defendant's argument is that the fork fell suddenly and unexpectedly and that there is no testimony that a compliance with the order to saw down through the trunk toward the point to which it had already been sawed laterally might or would have caused the fork to fall as it did and strike plaintiff. The very purpose of sawing down through the trunk was to make it fall. Any one knows that the more the support of a fork of a tree is sawed away the sooner it will fall, and that when it is almost completely sawed through it is likely to fall at any time. We think it was clearly for the jury to say whether or not the superintendent, in the exercise of ordinary care would have known that the tree, frozen and therefore brittle, would be likely to break off quickly when it was sawed down farther; that the butt of the tree would be likely to fly off on the downhill side where plaintiff was required to work; and that it would be likely to strike him before he could get out of the way. In fact, the action of the foreman, under the circumstances, in ordering the men away from the tree when they lacked only two inches of sawing completely through the fork and attempting to complete the job with wedges, is some evidence...