Petrilli v. Swift & Com-Company
| Decision Date | 07 April 1924 |
| Citation | 260 S.W. 516,216 Mo.App. 626 |
| Parties | GEORGE PETRILLI, Respondent, v. SWIFT & COM-COMPANY, Appellant. * |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Buchanan County.--Hon. L. A. Vories Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Robert A. Brown and Richard L. Douglas for appellant.
Shull & Shull for respondent.
This is an action for damages by an employee in defendant's meat packing plant at St. Joseph. There was a verdict for defendant, and plaintiff filed motion for new trial, which the court sustained without assigning a reason therefor. Thereupon the defendant appealed.
The petition alleged, in substance, that it was plaintiff's duty as an employee in defendant's plant to pull truck loads of meat from one place to another; that it was defendant's duty to furnish help to plaintiff, sufficient to render it reasonably safe; that on the day he was injured plaintiff was engaged in pulling a truck loaded with meats up a certain incline; that a reasonable load for him to pull up said incline was about 400 pounds; that plaintiff and other workmen were then under a foreman, and a very large load to-wit, about 1000 pounds, was placed on plaintiff's truck; that said load was too heavy for plaintiff to pull with reasonable safety without help or aid; that plaintiff complained to said foreman of the excessive load and asked for help to aid him in trucking said load up the incline; that the foreman ignored his request and ordered plaintiff to truck same alone and without help; that thereupon plaintiff, being under orders, proceeded to truck said load alone up said incline; that said truck and said load was so heavy that it was dangerous for one man to truck alone, and defendant was negligent in ordering plaintiff, through its foreman, to do so.
The petition further alleged that plaintiff had no daylight but had to rely on small electric lights that hung near and over the runway or passage he had to pull his truck over, and unless said runway was well lighted, the same was not reasonably safe, but was unsafe and dangerous, especially when a truck was heavily loaded.
That on the day plaintiff was hurt, said runway was not well lighted, and because thereof was unsafe and dangerous, and said foreman negligently ordered plaintiff to use same in moving said heavily loaded truck thereon; and because of its poorly lighted condition, plaintiff was unable to use same with reasonable safety, and was liable to injury from the great weight of his load and from having no help and from said unlighted condition.
That defendant carelessly ordered plaintiff to pull his truck, heavily loaded as aforesaid, over the runway and up the incline without reasonable help and while said incline or runway was not reasonably well lighted nor so lighted as to be reasonably safe for the purpose of moving such a heavy load thereon by plaintiff unaided; that defendant carelessly ordered plaintiff to pull his truck without furnishing him help as requested.
That on June 12, 1922, plaintiff was, under the direction of the foreman, pulling said truck, heavily loaded as aforesaid, up said incline without help and while said incline was insufficiently lighted as aforesaid, and under the dangerous situation aforesaid, when being unable to manage said truck and to pull same up said incline in the unlighted and dark condition thereof and for want of sufficient help, said truck "became unmanageable when at or near the top of said incline and ran backward and became so that plaintiff was unable to manage same and in his effort to handle and manage same, plaintiff received sprains and injuries that caused him to have what is commonly called and known as double rupture."
The answer, after a general denial, pleaded that plaintiff, by accepting employment, assumed the risk ordinarily incident to his employment and that plaintiff's injuries, if any, resulted from the risks and dangers ordinarily incident to his employment.
Plaintiff's evidence is that he was working under the direction of a boss who had authority to, and did, discharge men when they did not obey his orders; that plaintiff was engaged in pulling meat on a truck from the "hogroom" to the "refrigerator room" in said plant; that before he did this work they had two men to a truck, but that he did the work two persons had done before; that the average load for one man was 700 pounds but when the load was extra heavy, or over 700 pounds, they would use two men; that on the way between the two rooms and near the refrigerator room was an incline about five feet in length and one foot in height at the upper end, and from the top of the incline to the doors of the refrigerator room, a distance of 20 feet, it was level; that plaintiff was pulling a truck behind him loaded with 1300 pounds of meat, the truck and load weighing 1400 pounds.
Plaintiff's evidence is further that when he relinquished his empty truck and took charge of the loaded one, he remarked to the boss that the load was extra heavy for him. The boss, however, ordered him to proceed, and, in response to his request for help, told him he could do it himself or quit.
Plaintiff testified that he started toward the incline as fast as he could and went up it as rapidly as possible, but the momentum he thus gained, ceased when the truck was about five inches from the top of the incline and the truck came to a standstill; plaintiff was then standing on the level and the truck began to return or go back down the incline; that he tried to pull it up and hold the truck from going down, and while doing so, he felt something in his abdomen give way and he then suffered a rupture. The truck then went on back down the incline.
At the close of plaintiff's case in chief, and again at the close of the entire case, the defendant demurred but was overruled. The jury, as stated, returned a verdict for defendant but the court set it aside and granted plaintiff a new trial, giving no reason therefor.
It is well settled that although the statute (section 1454, R. S. 1919) requires the trial court to specify the grounds on which a new trial is granted, its action in granting same without stating the grounds thereof, will not be thereby invalidated; and the appellate court, in reviewing such action, will consider any or all of the grounds specified in the motion for new trial. [Lindsay v. Shaner, 291 Mo. 297, 300.]
Where the motion for new trial has been sustained, with no reason given by the court for so doing, and one of the points made by the motion for new trial is that the verdict is against the weight of the evidence, then the appellate court will not disturb the trial court's action unless there is no substantial evidence to justify a result contrary to the verdict, or unless the evidence of the party obtaining the new trial conclusively shows that no verdict in his favor could be allowed to stand. [Leavel v. Johnston, 209 Mo.App. 197, 200; King v. Mann, 208 Mo.App. 642.]
Plaintiff's motion for new trial stated, as one of its grounds, that the verdict was against the weight of the evidence, and, therefore, the chief question before us is whether a verdict in plaintiff's favor could be allowed to stand.
Now although the petition alleges that the runway was insufficiently lighted, yet there is no statement therein showing any connection whatever between a lack of light and plaintiff's ability or inability to pull the load up the incline, or between the matter of light and plaintiff's injury. The charge is that the truck was overloaded and plaintiff, though requesting help, was ordered to pull it up the incline without help and that he obeyed orders and undertook to pull the...
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