Reynolds v. City Ice & Storage Co.

• Decision Date: 03 April 1916
• Docket Number: No. 11893.,11893.
• Court: Missouri Court of Appeals
• Parties: REYNOLDS v. CITY ICE & STORAGE CO.

184 S.W. 934

REYNOLDS v. CITY ICE & STORAGE CO.

No. 11893.

Kansas City Court of Appeals. Missouri.

April 3, 1916.

Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

"Not to be officially published."

Action by Albert A. Reynolds against the City Ice & Storage Company, a corporation. From a judgment for defendant, plaintiff appeals. Affirmed.

Guy M. Cowgill, of Kansas City, for appellant. Boyle & Howell, Glen L. Bruner, and Jos. S. Brooks, all of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff was in the employ of defendant and engaged in delivering ice to customers in Kansas City. Delivery was made from a wagon. The endgate was so attached that it could be held upright like the sides of the bed, thus preventing ice from sliding out of the wagon when going up hill; or it could be lowered to the plane of the bed and there held by chains, and, in this position, it formed an extension of the bed beyond the end of the wagon; or it could be lowered until it hung down perpendicularly from its hinges on the end of the bed. Along what would be the top of the endgate when it was in an upright position was a strip of iron bolted to the wood and extending the full length of the gate. At one end thereof, and extending perhaps halfway the length of the endgate, the wood next the iron had become worn and the screws loose, so that, when the endgate was let down to the same plane as the bottom of the wagon bed, the strip of iron extended from a half to three-quarters of an inch above the board. With one's face to the front end of the wagon, this projection began at the left end of the gate and extended, as stated, perhaps halfway along the length of the gate. The rest of the way the strip was down tight against the board. The wagon had been turned to the north. Plaintiff was in the wagon bed and walked to the south end, where the endgate was in a horizontal position in the same plane as the bottom of the bed. Plaintiff, facing south, stooped down and, placing his right hand at the west end of the endgate, attempted to leap to the ground. As he made the spring, his right foot slipped on the board and caught upon the protruding strip of iron, causing his body to swing around to the right as on a pivot and fall to the ground with his left leg doubled under him, breaking it in two places. He brought this suit for damages and obtained a verdict in the sum of $2,750. A motion for new trial was sustained "for the reason that the court erred in refusing to give an instruction in the nature of a demurrer to the evidence asked by the defendant at the close of the evidence on behalf of the plaintiff and at the close of all the evidence." Plaintiff appealed.

The foundation of plaintiff's case is the alleged failure of defendant to exercise ordinary care to furnish plaintiff a reasonably safe appliance with which to work. And the petition also alleged that, prior to plaintiff's fall, he called defendant's attention to the condition of the endgate, and that defendant promised to repair same, but failed to do so. The answer, in addition to a general denial, pleaded contributory negligence and assumption of risk.

Plaintiff's evidence shows that he was 50 years of age; that he had been a driver of teams and wagons all his life, and had worked around ice wagons for 25 or 30 years. The wagon bed was 5 feet wide, and below the endgate was a step about 30 inches in length; but, when the endgate was adjusted to the same plane as the bottom of the wagon bed, it extended beyond the step. Plaintiff testified that he placed his right hand on the west end of the endgate and intended to jump out with both feet at the same time, as he always did; but that time his right foot slipped on the slush in the bed, and his right heel caught on the projecting edge of the iron. Plaintiff also testified that he had slipped and caught his heel on this iron band before that. How often he was not able to say, but he had done so. However, always theretofore he had been able to catch and recover himself. Plaintiff's son, who was the driver of the wagon, and who testified in plaintiff's behalf, testified to slipping and catching his heel on the iron strip prior to the date of the injury. Plaintiff further testified that a man could get out of the wagon a dozen different ways if he wanted to, and they would all be safe; that he could have gotten out of the wagon a little east or west of where he did get out, and could have gotten out on either side of the place where the strap iron was loose. He was then asked:

"Q. Well, why didn't you do it? A. Well, when you are in a hurry you don't always wait to pick out a place; you just jump right out. I've been doing it all my life, and I never got hurt...