Plummer v. Ford

• Decision Date: 02 December 1918
• Docket Number: No. 13017.,13017.
• Citation: 208 S.W. 489
• Parties: PLUMMER v. FORD.
• Court: Missouri Court of Appeals

208 S.W. 490

PLUMMER v. FORD.

No. 13017.

Kansas City Court of Appeals. Missouri.

December 2, 1918.

Appeal from Circuit Court, Clay County; Frank P. Divilbiss, Judge.

"Not to be officially published."

Action by William a. Plummer against W. E. Ford. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

W. E. Fowler, of Excelsior Springs, and Kimbrell & O'Donnell, of Kansas City, for appellant.

Morrison, Negent Wylder, of Kansas City, for respondent.

TRIMBLE, J.

Defendant was engaged in grading a street the composition of which was soapstone and clay. For this purpose the street was being plowed in the presence and under the supervision and direction of defendant's foreman. Plaintiff was driving the team hitched to the plow. This plowing was being done along the line where the curb wax to be, and some preparation of the ground had been made therefor, so that there was a sort of ditch between the two horses as they walked, and one of the horses was on ground 18 inches or more higher than the ground on which the other horse walked. The work in that sort of ground was very heavy, and the horses, in exerting their strength and at the same time trying to keep out of the ditch, bore heavily outward and apart from each other. This caused the rear portion of the horses' bodies to exert, in addition to the forward pull, an outward pressure on the outer tugs, and this in turn caused the outer tugs to pull the singletree hooks out somewhat in the direction the singletrees were pointing, instead of straight forward in the direction the team was going. Under the stress and strain to which the hooks were thus subjected, one of them straightened out and allowed the tug to come loose, whereupon the singletree flew back with terrific force, striking plaintiff in the leg and breaking it. He brought this suit for damages. The jury returned a verdict for defendant, and plaintiff has appealed, claiming error in the giving of instructions in defendant's behalf.

However, if the evidence did not present a case entitling plaintiff to go to the jury, then the question of whether there were errors in the instructions is of no moment or consequence whatever. Carr v. Missouri Pacific R. Co., 195 Mo. 214, 92 S. W. 874. As defendant insists that no case was made, this is the first question to be settled.

The case is somewhat complicated by the fact that the team, plow, harness, and singletrees were owned and furnished by plaintiff, he receiving a certain sum per hour for the work of himself and outfit. However, the petition does not allege that defendant furnished the singletree, nor is the case based upon a charge that the singletree was defective. The substance of plaintiff's petition is that, the soil being very hard and the surface rough and uneven, the work was so heavy as to require two teams and very heavy plows and appliances in order for it to be performed in reasonable safety; that defendant knew or should have known this, but negligently attempted to have it done with one team and with apparatus and singletrees which, while sufficient for ordinary work, were not sufficient for such heavy work as was being done at that time and place, and were not sufficient to stand the strain that defendant knew, or by the exercise of ordinary care might have known, would he put upon it in plowing with said team in said soil on said rough and uneven surface; net defendant negligently performed said work in an unsafe and dangerous way, and negligently ordered plaintiff, working under the immadiate supervision of defendant's foreman, to assist in performing said work with said single team and with said insufficient singletree; that plaintiff "requested heavier apparatus and more assistance in performing said work, but was assured by defendant thee; that being used was sufficient, and plaintiff, relying upon the superior judgment of defendant, obeyed the order thus negligently given.

The answer was a general denial, coupled with a plea of contributory negligence and assumption of risk.

In order to make a case sufficient to go to the jury, it is not required of plaintiff that he produce evidence supporting all of the various allegations of his petition. It is sufficient if the evidence tends to support enough of them as will, if established, constitute a cause of action. If the evidence is such that the jury may reasonably draw the inference that, owing to the heavy character of the work, and the surface of the ground, or either of these things, it was not reasonably safe to perform it with one team and with the ordinary apparatus thereof, and that defendant knew, or should have known, this, and that defendant negligently ordered plaintiff to do the work with one team and the apparatus aforesaid, and that plaintiff, while exercising ordinary care on his part, was injured by reason of such order and the use of only one team with the ordinary apparatus going therewith, then there was a case for the jury. Of course, if the giving away of the hook arose merely because it was too light to stand the strain ordinarily expected to be placed upon it, or, in other words, solely as an incident in the ordinary heavy work of a team in plowing, then the breaking was not the result of defendant's negligence, and, in that event, the danger of its breaking was one of those assumed by plaintiff. But if, on defendant's part, there was negligence in ordering such heavy work in that uneven place to be done with only one team, then, under the Missouri rule, plaintiff did not assume the risk arising from such negligence. Nor, in such case, would he be guilty of contributory negligence, unless the danger was so glaringly apparent that a reasonable man would not have obeyed the order. If the hook gave way on account of some inherent defect, or because it was incapable of standing the strain, reasonably and ordinarily expected from a team engaged in doing heavy work, then, of course, the injury did not arise from the negligent order, but arose from a defective or insufficient singletree furnished by plaintiff himself. There was, however, no evidence of a defect in the hook, nor of its insufficiency for ordinary heavy work, save that which might be inferred merely from its giving way. On the contrary, the evidence tended to show it was "a good heavy hook" "sufficient to hold any ordinary pull straight ahead." Even defendant's foreman said it was a "heavy clip"; a "pretty heavy piece of steel." And the evidence is that it and the singletree were new. With reference to the other facts in the case, the evidence showed that plaintiff was plowing under the immediate supervision of defendant's foreman; that the plow used was a heavy one built for plowing streets and roads and so as to stand the pull of two teams if the soil demanded it; that there was an extra team kept at the scene of work for the purpose of being hitched to the plow in front of the other team; that the doubletrees or apparatus of this extra team were to be hitched to the end of the beam of the plow, and that this lessened the strain on the singletrees and pulling apparatus of the other team. There can be no question as to the foregoing since the evidence on both sides is to that effect.

There is also evidence tending to show: [3] That plaintiff, under the direction of the foreman, after having, with the one team, plowed a small place some 10 or 12 feet in extent at the intersection of two streets, was ordered to plow on one of said streets for a distance of possibly 75 or 100 feet from the intersection. This portion was up a slight grade. Plaintiff's evidence is that" he suggested to the foreman that the extra team ought to be put on as the work was too heavy, which extra team, according to plaintiff and other witnesses, was standing idle near by with its doubletrees and apparatus arranged for hitching onto the end of the plow beam. Plaintiff says the foreman refused to permit the use of the additional team, saying:

"We will try it; it's a short pull and takes up time hitching and unhitching, and we will...