Roberson v. Loose-Wiles Biscuit Co.

• Citation: 285 S.W. 127
• Decision Date: 01 June 1926
• Docket Number: No. 19389.,19389.
• Parties: ROBERSON v. LOOSE-WILES BISCUIT CO.
• Court: Court of Appeal of Missouri (US)

285 S.W. 127

ROBERSON v. LOOSE-WILES BISCUIT CO.

No. 19389.

St. Louis Court of Appeals. Missouri.

June 1, 1926.

Rehearing Denied June 25, 1926.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by Alexander Roberson against the Loose-Wiles Biscuit Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jones, Hocker, Sullivan & Angert, of St. Louis, for appellant.

Earl M. Pirkey, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff while in the employ of defendant. The verdict of the jury was for plaintiff in the sum of $1,500, and judgment was rendered thereon, from which defendant has appealed.

In the petition it was alleged that—

"Defendant was the owner of, and in possession and control of, and using and operating, a plant in the city of St. Louis, Mo., at or about Fifteenth street and Clark avenue, including the private alley or driveway hereinafter mentioned, and at the time plaintiff was injured as aforesaid, and for some time next prior thereto, he was in the service of defendant at said plant as a laborer, and under and by said service he was required to move a loaded truck or dolly in and through said alley, and there was a smooth part of said alley suitable for said work, but, when defendant had said part occupied by wagons, then plaintiff was required under and by said service to move said dolly while loaded over the rough part a said alley, which part was rough and uneven, and had holes in it. That at the times herein mentioned it was not reasonably safe for plaintiff to move said dolly when loaded over said rough part, because there was probable danger of it jerking and straining and injuring plaintiff. That defendant knew, or by the exercise of ordinary care would have known, of the above-mentioned matters and things before plaintiff was injured, as hereinafter mentioned, yet thereafter it negligently required him to move said dolly while loaded over said rough part of said alley."

The answer was a general denial, coupled with a plea of contributory negligence. The reply does not appear in the abstract of the record. It seems, however, that the case was tried as though the new matter in the answer was at issue.

Plaintiff was injured on July 19, 1923, while in the employ of defendant as a laborer at its plant at Fifteenth street and Clark avenue in the city of St. Louis, Mo. His foreman was L. M. Heinemann. Clarence Vollet was the assistant foreman. Plaintiff had been specifically directed by Heinemann to obey all orders given him by Vollet.

North of defendant's factory, and between Johnson and Fifteenth streets, defendant maintained a private alley, running east and west, 12 feet wide, and approximately 40 feet in length. This alley was divided into three sections, each 4 feet wide. The center section was paved with wooden blocks, and was smooth. Both outer sections were paved with bricks. The evidence disclosed that the section on the south side, upon which plaintiff was injured, was roughly laid and uneven. Some of the bricks were broken off, leaving small holes and depressions. A water pipe discharged at the point where plaintiff sustained his injury, and had washed out the mortar, and had left crevices between the bricks. The assistant foreman, Vollet, testified that one pushing a dolly over this part of the alley would be jerked, and that the surface was rough enough for a man to hurt himself. Heinemann testified that the middle section was made smooth for the purpose of pushing dollies over it. The condition of the alley had been the same as when plaintiff was injured for at least two months, and, in fact, throughout the term of Vollet's employment, the extent of which was not disclosed.

Twice a week wagons were brought to the end of the alley at Fifteenth street to haul bales of paper away from the factory. On the morning that plaintiff was injured he was engaged in conveying a bundle of paper from the receiving room to such a wagon in response to an order given him by Vollet. The bundle weighed from 300 to 350 pounds, and was loaded on a dolly which plaintiff was pushing. This dolly was a flat truck about 1½ feet wide and 2½ feet long, and extended 3 or 4 inches above the ground. At each corner was a wheel approximately 2 inches in diameter.

Plaintiff was unable to push the dolly upon the smooth surface in the center of the alley for the reason that two or three of defendant's wagons, each 10 or 12 feet in length, were standing on the north side of the alley in the space between the receiving room and Fifteenth street. Due to the width of the wagons, there was only a total of 6 inches of clearance available to plaintiff 'in pushing the loaded dolly between the wagons and the wall of the factory on the south side. Vollet admitted that he saw the wagons standing in the alley, and knew that it would be necessary for plaintiff to push the dolly over the rough part of it.

The bale of paper completely covered the dolly. Plaintiff was holding the paper, and attempting to guide the dolly between the wagons and the wall. He testified that to move the dolly over the rough surface required a "hard push." He had proceeded about 10 feet when the right front wheel of the dolly dropped into a hole from 1½ to 2 inches deep, where part of a brick was missing, causing plaintiff to sustain an injury to his back. Plaintiff admitted that he knew that there were holes in the surface of the alley, but testified that he thought that by being careful, like he had been in the past, he would be able to push the dolly over them with safety.

At the close of all the evidence the jury in a body were escorted to the scene of the accident and viewed the location.

Defendant first assigns that the court erred in refusing to give its instructions in the nature of demurrers to the evidence requested both at the close of plaintiff's case and again at the close of the whole case. Of course, inasmuch as defendant did not stand upon its demurrer offered at the close of plaintiff's case, but put in its own evidence, the question whether a case was made for the jury must be determined in the light of all the evidence introduced. Larkin v. Wells (Mo. App.) 278 S. W. 1087.

In support of its contention that its demurrer to all the evidence should have been sustained, defendant argues that no negligence on the part of defendant was shown, and that plaintiff was guilty of contributory negligence as a matter of law. The case proceeds upon the theory of a negligent order by defendant to plaintiff. The evidence disclosed that the smooth surface in the center of the alley had been constructed by defendant for the purpose of moving dollies over it; that it was impossible for plaintiff to move the dolly over this section by reason of the fact that defendant's wagons were covering it; that the section on the south side was rough and uneven, for the reason that some of the bricks were broken off, leaving small holes and depressions, and for the further reason that the discharge of water from the water pipe had washed out the mortar, and left crevices between the bricks; and that defendant's foreman, Vollet, knowing that the wagons were standing as aforesaid, and that plaintiff would be required to push the dolly over the surface, which was rough enough for a man to hurt himself, ordered plaintiff to convey the bundle of paper on the dolly over such route. In view of the above evidence, it was for the jury to say whether Vollet's order, given under such circumstances, was a negligent one. Nor was plaintiff guilty of contributory negligence as a matter of law in obeying Vollet's order, unless the danger to be incurred thereby was so imminent and glaring that a reasonably prudent person would not have incurred the risk. George v. St. Louis & S. F. R. Co., 225 Mo. 364, 125 S. W. 196; Jewell v. Bolt & Nut Co., 231 Mo. 176, 132 S. W. 703, 140 Am. St. Rep. 515; Van Bibber v. Swift & Co., 286 Mo. 317, 228 S. W. 69; Head v. Leming Lumber Co. (Mo. Sup.) 281 S. W. 441. Clearly, the danger to be incurred in pushing the dolly over the rough surface of the alley was not so obvious as to require that plaintiff be convicted of contributory negligence as a matter of law. In...