Peetz v. St. Louis Transfer Company
| Citation | 199 S.W. 433,198 Mo.App. 155 |
| Parties | JOHN PEETZ, Respondent, v. ST. LOUIS TRANSFER COMPANY, A CORPORATION, Appellant |
| Decision Date | 04 December 1917 |
| Court | Court of Appeal of Missouri (US) |
Argued and Submitted November 6, 1917
Appeal from the Circuit Court of the City of St. Louis.--Hon. J Hugo Grimm, Judge.
AFFIRMED.
Judgment affirmed.
Kelley & Starke for appellant.
(1) The motion for nonsuit should have been granted, for the following reasons: (a) There was no evidence that defendant knew of the alleged existence of the nail or nails that are claimed to have caused the injury, nor is there any evidence that defendant in the exercise of ordinary care should have known of such nail or nails. Henson v. Stave Co., 151 Mo.App. 234; Wojtytak v. Coal Co., 188 Mo. 260 281; Pippin v. Construction Co., 187 Mo.App. 360; Bowen v. Railroad., 95 Mo. 268, 276. (b) Plaintiff had equal opportunity with defendant to notice that nail, if any nail were there, and was fully as capable of foreseeing such dangers, if any, as lurked in it. His contributory negligence bars recovery. Lowe v. Railroad Co., 265 Mo. 587; McGinnis v. Press Brick Co., 261 Mo. 287; Pohlman v. Car & Foundry Co., 123 Mo.App. 219; Rogers v. Packing Co., 185 Mo.App. 99. (c) The chance of the injury claimed to have been caused by that nail, if any were there, is so remote that defendant could not be expected to contemplate it; and therefore was not at fault in failing to provide against it. Halloran v Pullman, 148 Mo.App. 243; Weesen v. Railroad, 175 Mo.App. 374. (2) It was reversible error to allow a bundle of nails to be shown to the jury which plaintiff identified as having been shown him shortly after his injury, there being no evidence of any kind to show that the nails produced had any connection with the injury or with the wagon in which it occurred. It was only natural for the jury to think that the exhibited nails came from that wagon. (3) It was error to admit evidence of the nailing of cleats in some wagons used by defendant without connecting it in any way with the wagon involved in this case. Particularly is this true when the only evidence on the point was positive that no cleats had been put into that wagon.
Leahy, Saunders & Barth for respondent.
(1) The court did not err in overruling the defendant's motion for nonsuit, for the following reasons: (a) There was ample evidence to establish the fact that the defendant knew, or, by the exercise of reasonable care, might have known of the existence of the nails that caused the injury. The evidence established that nails of the size and description herein involved were frequently used upon the beds of wagons of the defendant and left protruding; that plaintiff had no regular wagon to drive, and was furnished with the wagon in question by the foreman of the company, which wagon had been left the afternoon prior to the injury in the charge of the foreman of the defendant. The law is well established that it is "the master's duty to use ordinary care to inspect and keep appliances and tools in a reasonably safe condition for the use of his servants" (Deckard v. Railroad, 111 Mo.App. 124). And further it is equally clear that (Cody v. Lusk, 187 Mo.App. 337). And, finally, it is the universal authority that the question of the master's knowledge of the defect or his ability to have discovered the same by the exercise of this "ordinary care" is one "for the jury, and not for the court to determine." Schuerer v. Rubber Co., 227 Mo. 368; Tallman v. Nelson, 141 Mo.App. 478, 485; Coontz v. Missouri Pac. Ry. Co., 121 Mo. 652, 657-8; Deckard v. Railroad, 111 Mo.App. 117, 124; Covey v. Hannibal & St. Joseph Ry. Co., 86 Mo. 635, 641-2; Schuerer v. Railroad, 227 Mo. 347, 368; Cody v. Lusk, 187 Mo.App. 327, 337; Gordon v. Railroad, 222 Mo. 516, 528; O'Flanagan v. Railroad, 145 Mo.App. 276; Bassett v. Railroad, 166 Mo.App. 619, 624. (b) There is not a particle of evidence of contributory negligence in the record. Here, too, is an issue of fact to be resolved by the jury. There is not even evidence of knowledge on the part of the plaintiff of the lurking danger, and even though there were, by no possibility can it be said that the defect was so imminently dangerous that plaintiff was guilty of contributory negligence as a matter of law. Settle v. St. Louis & San Francisco R. R. Co., 127 Mo. 336, 341, 344; Houts v. Transit Co., 108 Mo.App. 686, 694; Bliesner v. Distilling Co., 174 Mo.App. 139, 147; Johnson v. Construction Co., 188 Mo.App. 105; Barnard v. Brick & Coal Co., 189 Mo.App. 417. (c) A tripping over a protruding nail or nails in the bed of a delivery wagon, left there by the negligence of the defendant, is by no means a "remote" consequence that "defendant could not be expected to contemplate." The apposite principle is thus announced: "It is not essential that defendant could have anticipated the very injury complained of, or that it would have anticipated that it would have occurred in the exact manner in which it did occur, but it is sufficient if the negligence of the defendant was the proximate cause of the injury." Bliesner v. Distilling Co., 174 Mo. App 145; Dean v. Railroad, 199 Mo. 386, 411; Zeis v. Brewing Ass'n, 205 Mo. 638; Philips v. Railroad, 211 Mo. 419, 442; Buckner v. Horse & Mule Co., 221 Mo. 700, 710; Woodson v. Met. Street Ry. Co., 224 Mo. 685, 707. (2) By no stretch of circumstances could it have been reversible error for witness to have referred to a bundle of nails shown to him, as answering the description of the character and size of "twenty-penny nails," which kind of nails witness testified were in the bed of the wagon. Moreover, the plaintiff. without objection on the part of defendant, had theretofore testified that those very nails were brought to him after the accident, by someone who claimed to have drawn them from the bed of the wagon. (3) It was in no sense error to admit evidence of the fact that nails were promiscuously driven in the beds of the defendant's wagons and allowed to protrude. Testimony on this point was invited by the defendant's own course of cross-examinations. Moreover, plaintiff had theretofore testified that he had "no regular wagon" to drive but was required to take any one that the foreman ordered.
Action to recover damages for injuries said to have been sustained by plaintiff while unloading a wagon of a defendant which he had been driving, it being charged in the petition that while plaintiff was lifting or moving one of four barrels of molasses, which were part of his load, from the wagon, a nail protruding from the bed of the wagon caught in the sole of plaintiff's left shoe, tripped him, and caused the barrel which he was then lifting to fall with great force and violence on the lower part of his leg, causing a compound fracture of the leg, in consequence of which fracture he was confined to his bed and house for some time and forced to go on crutches for a long period. It is charged that defendant knew, or by the exercise of ordinary care would have known, that the bed of the wagon had nails protruding from it and that the wagon would be used for the delivery of heavy freight, and that the injuries to plaintiff were directly caused by the carelessness and negligence of defendant in suffering and permitting the nails to be and remain in the bed of the wagon.
The answer, after a general denial, pleaded contributory negligence and assumption of risk. To this a reply in the form of a general denial was filed.
On trial before the court and a jury there was a ver-following, from which defendant, interposing a motion dict in favor of plaintiff in the sum of $ 2500, judgment for new trial, as also one in arrest of judgment, and excepting to the overruling of these motions, has duly appealed.
There are a number of assignments of error but the points relied upon for a reversal are, first, that the court erred in failing to sustain demurrers at the close of plaintiff's case and again at the close of all the case, it being claimed that there was no evidence that defendant knew of the alleged existence of the nail claimed to have caused the injury, nor any evidence that defendant, in the exercise of ordinary care, should have known of the presence of such nail or nails; that because plaintiff had equal opportunity with defendant to notice the nail, if any was there, and was fully as capable of seeing the danger, if any, that lurked in it, and his contributory negligence bars recovery; and that the chance of injury claimed to have been caused by that nail, if there was one there, was so remote that defendant could not be expected to contemplate it and was therefore not in fault in failing to provide against it.
It appears by the testimony in the case that about half past four or five o'clock on the evening of January 5, 1914 plaintiff, who had been in the employ of defendant for a number of years as a teamster, and had been engaged in that occupation for many years prior thereto, was instructed to hitch his team to a certain wagon belonging to defendant and carry a load of chicken feed, which was contained in burlap sacks, to a railroad freight house in East St. Louis. The bed of his wagon was filled with these sacks, each sack weighing something like 100 pounds. He arrived with his load at the freight house in East St. Louis about half past five on the evening of January 5th, and the sacks were unloaded from his wagon by the men at the freight house, plaintiff standing by and checking off but not assisting in unloading. After the unloading of the sacks he was given...
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