Phelan v. Granite Bituminous Paving Company

• Decision Date: 28 November 1905
• Citation: 91 S.W. 440,115 Mo.App. 423
• Parties: PHELAN, Respondent, v. GRANITE BITUMINOUS PAVING COMPANY, Appellant
• Court: Missouri Court of Appeals

91 S.W. 440

115 Mo.App. 423

PHELAN, Respondent, v. GRANITE BITUMINOUS PAVING COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

November 28, 1905

[Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.

REVERSED AND REMANDED.

STATEMENT.--In the months of September and October, 1904, the defendant under a contract with the city of St. Louis, was engaged in reconstructing Laclede avenue in said city, by putting down a concrete foundation, surfaced with bituminous macadam. There is a double street railway track in the center of Laclede avenue. The distance from the outside rails of the tracks to the curb is fifteen feet on either side. On October third the north side of the avenue had been reconstructed and was open for traffic, and the defendant was at work on the south side in block thirty-seven hundred west, spreading the bituminous macadam and compressing it with a nine ton steam roller. The macadam is in a lumpy state and at a very high temperature when spread and must be rolled before it cools. After smoothing it down with a roller, a coat of crushed granite is spread over it and then forced into the bituminous preparation by running a roller back and forth over it many times. Defendant had dumped a pile of crushed granite at or near the curb on the north side of the avenue and about opposite where its roller was in operation. A gravel sprinkling cart was standing by this pile of granite. The cart is described as a two-wheeled vehicle with shafts like a baby buggy, and a sheet-iron funnel in the center for containing and distributing crushed granite. Plaintiff was a driver of a one-horse laundry wagon. On the morning of October third he turned from Grand avenue into Laclede avenue and drove west on the south side of the street until he came near the steam roller operating on the south side of the tracks. Plaintiff's horse was frightened, presumably, by the noise made by the steam engine, became unmanageable, lunged forward, ran the wagon over the gravel cart and the pile of crushed granite onto the curb and upset it. The horse fell on the street, plaintiff went over with the wagon and in falling struck his eye against the curb or some projecting sharp object bursting the eyeball. For the loss of his eye plaintiff recovered a judgment for thirty-seven hundred dollars. The defendant appealed.

The allegations of negligence are that the defendant "so carelessly, negligently and recklessly managed and conducted the said steam street roller that the same scared the horse which was hitched to the wagon and which was being driven by the plaintiff, and the said horse was caused to shy and run away into the curb and into a box of street paving material next to the curb on the north side of said Laclede avenue, at said point, whereby the plaintiff was violently thrown from his wagon to the street and curb, and was thereby severely injured.

Plaintiff says that "the defendant's said agents and servants in charge of said steam street roller knew and saw, or by the exercise of reasonable care, could have known and seen, that the plaintiff's horse was being scared by the running and unusual puffing and frightening noises of the steam street roller and that plaintiff's horse was about to run away, and that plaintiff was being placed in a position of peril, in time for the defendant's said agents and servants to stop or check the running of said steam roller and check its unusual puffing and frightening noises, and thereby prevent the plaintiff's horse from frightening and running away and the injuries to the plaintiff. But the defendant's said agents and servants in charge of said steam street roller did nevertheless, carelessly, negligently and recklessly run and operate said steam street roller at an unusual speed and with unusual and frightening noise, whereby plaintiff's horse was scared and ran away, and plaintiff was injured as aforesaid."

The answer was a general denial with the plea of contributory negligence put at issue by a reply.

The evidence is that the steam roller weighed nine tons; that it traveled, when in operation, at a speed of about three miles per hour and could be stopped almost instantaneously; that it was run back and forth over the bituminous preparation spread upon the concrete foundation for the purpose of compressing it; that the engineer in charge of the steam roller saw the plaintiff coming when he was two or three hundred feet east of him.

Plaintiff testified that he had been driving the horse for four years, around street cars, locomotives and engines; that he had never experienced any trouble with him, and that the horse was perfectly gentle and had never scared; that the horse was blind in one eye and the sight of the other was defective, but he could see fifteen or twenty feet. Plaintiff stated he saw the steam roller when he reached Spring avenue, a distance of about one hundred and fifty feet from the roller, and that he could have turned north on Spring avenue and driven a block north, then turned west and by driving one block west and a block south could have driven around the roller and reached his place of destination--forty hundred Laclede avenue--but he did not do this, for the reason he did not anticipate his horse would be frightened by the steam roller. Plaintiff further testified as follows:

"When I passed Spring avenue this engine started to blow off and made several loud puffs and blew its whistle; blew its whistle two or three times. I was then within forty feet of it, on the north side of the car tracks. The engine had not moved prior to that. When I approached that point it was standing still. When I got within forty feet of it, I heard these whistles and this very rapid puffing. It was very loud.

"Then the engine started up, running back and forth, kind of cater-cornered. It was headed west. It would run a little bit forward and then a little bit back. At the time I heard these successive whistles and this noise, it was running toward me; that is, toward the east. I was going west. It was running in a northeasterly direction. The engine was facing the horse and was running toward the east. The first thing my horse did when this whistling took place was to rear on his hind feet, and give one rear then another one, and keep on that way. I tried to control him by pulling on the line and sawing on his mouth. This rearing and jumping continued about two or three minutes. I yelled at the horse to quiet him.

"Then I ran into a box filled with gravel that was on wheels. I ran over the axle. It was on the north side of the street, the side I was on. It was a gravel box they used to spread gravel over the street. The box itself was wood; it had a kind of sheet-iron funnel. Besides that there was a tar box there and also a pile of gravel. The box was out in the street about five feet from the curb. These were almost directly opposite the engine.

"After the horse ran me into this box, the next thing I struck was a pile of gravel, and by that time he hit the curb and my wagon turned over and threw me out, and the horse was lying sprawling on the sidewalk. I hit my eye on the curb and knocked it out. While I was struggling to manage my horse, I heard further puffing. The puffing did not stop at all. It did not stop until after I had left; after I had picked myself up. It had stopped at that time.

"After my horse was scared, I did not see them do anything to stop the roller making the noise. After I was thrown out, I got myself from under the wagon and went to the drug store on the corner. The employees in charge of the roller did not assist me. No one assisted me. After I had gotten a part of the way to the drug store, a gentleman came up and assisted me up on the step, and he went on. I do not know who he was. The drug store was on the corner of Spring and Laclede. Dr. Miller operates it. Nothing was done there except to bathe the eye and tie it up. The eyeball was split open, it was running out on my cheek, and the druggist bound it up as well as possible, and a gentleman came in and assisted me over to the Rebecca Hospital. I was in the hospital a week, where they dressed my eye, sewed it up and put it back in with the hope of saving it, and left it there for a while."

In regard to the whistling and puffing of the engine and the distance plaintiff was from it while the noise was going on, plaintiff was corroborated by Mrs. John Henning and Lotetta McCoy, who witnessed the casualty.

Defendant showed by several witnesses that there was no whistle on the steam roller and that there never had been one on it.

A. J. Taussig, a city street inspector, testified that he was present and witnessed the accident, in respect to which he stated:

"I was standing between the roller and this wagon; the wagon was going west on the north track. I noticed that this horse was trotting slowly. It was down grade. The roller was puffing but not puffing a bit more than it did ordinarily in going up the hill. The horse and wagon were about twenty-five or thirty feet from the roller, when they veered around to the right toward the north curb. The screening pile extended about four feet from the curb, and on the west end was this small screening cart, which was about as high as that rail from this platform, and about four feet square on the top with handles projecting about two feet, like baby buggy handles. That was on the west side of the screening pile, right alongside the cart. There were several colored men there shoveling screens into this cart, and their backs were toward the east. They were facing, shoveling west into this cart. When they heard this racket of the wheels of the wagon pulling off from the car track, the noise a wagon...