Rogers v. Tegarden Packing Co.

• Decision Date: 05 November 1914
• Docket Number: No. 1272.,1272.
• Citation: 185 Mo. App. 99,170 S.W. 675
• Parties: ROGERS v. TEGARDEN PACKING CO.
• Court: Missouri Court of Appeals

170 S.W. 675

185 Mo. A. 99

ROGERS v. TEGARDEN PACKING CO.

No. 1272.

Springfield Court of Appeals, Missouri.

November 5, 1914.

Rehearing Denied November 27, 1914.

1. NEGLIGENCE (§§ 1, 80) — WHAT CONSTITUTES — "CONTRIBUTORY NEGLIGENCE."

"Negligence" is a failure to exercise that degree of care which ordinarily prudent persons are accustomed to exercise under similar circumstances, it being a purely relative term depending on the facts of each particular case, while "contributory negligence" necessarily implies such failure on the part of more than one person; the Missouri rule being, that where a plaintiff by a negligent act on his part has directly contributed to his own injury, he may not recover, regardless of how his carelessness compares with the contributing cause of the injury.

2. NEGLIGENCE (§ 71) — CONTRIBUTORY NEGLIGENCE — DETERMINATION.

Where there is but one way to do a given act, and that way is dangerous, the court, in ascertaining whether the person who was injured in doing the act conducted himself as an ordinarily prudent person would, determines only whether an ordinarily careful person would have attempted to do the act at all, because the act was so glaringly dangerous that no ordinarily careful person would take the chance of performing it, while if there are two ways open for performance, one more hazardous than the other, the question is whether an ordinarily prudent person under all the surrounding circumstances would have selected the way plaintiff elected to perform the act.

3. MASTER AND SERVANT (§ 236) — INJURIES TO SERVANT — METHOD OF WORK — CONTRIBUTORY NEGLIGENCE.

Plaintiff, a servant in defendant's packing establishment, injured while pushing a meat truck through a door over a defect in the cement floor having voluntarily selected a dangerous way of so doing, with knowledge of the danger, when a safe way was available, was guilty of contributory negligence as a matter of law.

Robertson, P. J., dissenting.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by William L. Rogers against the Tegarden Packing Company. Judgment for plaintiff, and defendant appeals. Reversed.

Wm. H. Horine, Roscoe Patterson, and J. T. White, all of Springfield, for appellant. Williams & Galt, of Springfield, for respondent.

FARRINGTON, J.

The plaintiff was the servant of the defendant, and had been for eight or nine years prior to his injury, working in the same place and at the same kind of employment. His finger was mashed while engaged in that employment. He brought this action for damages, charging the defendant with negligence in furnishing him an unsafe place in which to work. A judgment was recovered in his favor, and the defendant appeals to this court, charging, among other things, that the evidence shows conclusively that the plaintiff was guilty of negligence which contributed to his injury, and that the court erred in submitting the issues to the jury.

Taking the same view of the case that appellant does, it will be unnecessary to discuss it from any other standpoint than that the plaintiff was guilty of contributory negligence as a matter of law. We will therefore start with the premise that the defendant was negligent as charged in the petition.

The case made, in the light of every reasonable inference drawn in plaintiff's favor (which is the case with which this court must deal), is as follows: For nine years prior to his injury the plaintiff worked in the cellar of defendant's packing plant, curing meat. This cellar was divided into rooms, referred to in the evidence as the old cellar, the east room, the wash room, and the curing room. The plaintiff was injured while trucking meat from the curing room through the wash room into the old cellar. The meat was carried out of the cellar by means of an elevator located in the southeast corner of the old cellar room, first having been brought on a truck from the curing room through the wash room and into the old cellar room. It was in the line of plaintiff's duty to operate the truck between these places. The floor of the entire cellar was concrete, and was in bad condition, in that, as charged in the petition, the concrete or cement was full of holes, ruts, or depressions, and was unsafe, dangerous, and unfit for the use to which it was put by the defendant. There was a traveled route or runway northward across the old cellar from the elevator shaft to the door of the wash room, which was full of holes. The defendant had caused boards to be fitted into these holes so that a truck could be run over them. The hole that was the cause of the accident was about 2½ inches deep, and had a board fitted into it 2 inches thick by 8 inches wide. The board was fitted in the hole loosely, and was not imbedded or fixed in the cement. The condition of this cellar floor and the location of the holes was known to both plaintiff and defendant long prior to the injury, and it was at plaintiff's request that the floor be repaired that the loose boards were placed in the holes. The wall of the wash room had been built against the north wall of the cellar, and an opening cut through the two walls formed a door, and it was at this point that the injury occurred. These two walls joining each other were about 3 feet thick, making the face of the door jambs the same thickness. The truck furnished by defendant had been run through this doorway back and forth between the curing room and the elevator shaft. There was a bad hole in the floor of the old cellar in or near this doorway. The truck had four wheels. The front wheels were rigid, but the two rear wheels worked on bearings or casters — were pivoted — so that the truck had to be guided by pushing from the rear. The platform of the truck was about 16 inches from the floor. On top of the platform was fastened a box or bin, wider at the upper rim than at the bottom. This box or bin at the top was 3 feet wide, according to plaintiff's evidence. The doorway through which the truck was being pushed when the injury occurred was 4 feet wide. The top of the bin, measured from the floor, was 3 feet and 6 inches high, and the truck was 3½ feet long. It did not have handles to push by, nor any tongue. It had been in use at that place for three or four years.

On June 22, 1912, plaintiff was ordered by the defendant's foreman to send up on the elevator 1,500 pounds of meat. He loaded the meat on this truck in the curing room. The bin was full, and the meat extended over at the front and back ends, which was the usual way of loading. Plaintiff started with the truck toward the elevator shaft. In going through the doorway from the wash room to the old cellar room one front wheel of the truck struck the hole in the cement floor and dropped into it, and the truck was fastened in the doorway. Plaintiff at this time was working by himself, and tried to get the truck out of its fastened condition, but was unable to do so. He then called up to the management to send down a man to help him, and a man was sent who brought along an iron hook with which to help pull the truck out. The plaintiff testified that they backed the truck far enough to get the front wheel out of the hole; that it was backed some 6 or 8 inches. The board was replaced in the hole, and with the helper in front pulling and the plaintiff behind pushing, the truck was started through the doorway again — not by a "running shoot," the plaintiff said. Plaintiff testified that the truck had been fastened in this place before, but that he had succeeded at such times in getting it through without injury to himself by having help and using the best judgment he could. When they started through this second time, plaintiff with his hands partly over the outside of the bin nearest the door jambs, the board came out again, causing the truck to fall over against the cement door jambs, catching and mashing the end of the third finger of plaintiff's hand which was on that side. Plaintiff testified that he was handling the truck in the usual way — in the way he had handled it before; that he had a reasonable load on the truck; that he had gone through that way before without getting hurt; that it was necessary to take hold of the truck as he did in order to guide it; and that he did not intend when he loaded the truck to run it against the door. The only other eyewitness, the man who was helping plaintiff get the truck through the doorway, testified that it never entered his mind that the truck would go against the door jamb, and that he thought it would go through all right.

There was evidence pro and con as to the proper manner in which one pushing the bin from the rear should take hold of it with his hands. Plaintiff's evidence was that the proper way, in order to guide it, was to do it just as he did when he was injured. The space between the plaintiff's fingers on the sides of the bin and the door jambs was about 6 inches on each side; the doorway being 4 feet in width and the top of the bin 3 feet in width. The plat introduced in evidence shows this runway, through the door and on each side of it, was straight, and the truck when going through this four-foot doorway was only one-half foot longer than the jambs of the doorway were wide.

The...