Rogers v. Tegarden Packing Company
| Decision Date | 05 November 1914 |
| Parties | WILLIAM L. ROGERS, Respondent, v. TEGARDEN PACKING COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Green County Circuit Court.--Hon. Guy D. Kirby, Judge.
REVERSED.
Judgment reversed.
Wm. H Horine, Roscoe Patterson and J. T. White for appellant.
(1) The trial court erred in overruling defendant's demurrer to the evidence at the close of all the evidence. The evidence shows the plaintiff chose an unsafe way to push his truck when a safe way was open to him, and because he was well aware of the condition of the floor, knew the truck was likely to slip into the depression on the floor and tilt to one side, and yet he placed his hands on the sides where they were certain to be mashed if the truck tilted. Schiller v. Breweries Co., 156 Mo.App. 569; George v. St Louis Mfg. Co., 159 Mo. 333; Moore v. Railroad, 146 Mo. 572; Smith v. Box Co., 193 Mo. 715; Wilkinson v. Andrians Bottling Co., 154 Mo.App. 563; Montgomery v. Railroad, 109 Mo.App. 88; Slagel v. Lumber Co., 138 Mo.App. 432; Meyer v Railroad, 103 Mo.App. 268; Pohlmann v. Car & Foundry Co., 123 Mo.App. 219; Harris v. Railroad, 146 Mo.App. 524. (2) The trial court should have given instructions number 4 and 5, which would have submitted the issue to the jury as to whether plaintiff chose an unsafe way when a safe way was available to him. Cases cited under point I. (3) The court erred in giving the instruction on the measure of damages, which told the jury they might award "such further sum as you find from and believe from the evidence will compensate plaintiff for future loss of wages and future impaired earning power. Because there was no evidence of future impaired earning power; and because the petition does not allege that sort of damage. Davidson v. Transit Co., 211 Mo. 320; McNell v. Cape Girardeau, 153 Mo.App. 424; Boyce v. Railroad, 120 Mo.App. 168, 176; Palmer v. Railroad, 142 Mo.App. 440; Becker v. Lincoln R. E. Co., 118 Mo.App. 74.
Williams & Galt for respondent.
(1) Although plaintiff knew of the defective condition of the floor he was not for that reason bound to quit the service of defendant unless the danger was so glaring that a person of ordinary prudence would not have pushed the truck over it under the circumstances shown in evidence, but was required to exercise care and caution in its use, commensurate with apparent danger, and these, under the evidence, were questions for the consideration of the jury. Pauck v. Beef & Provision Co., 159 Mo. 478-479. (2) Under the circumstances of this case the allegation of loss of time which could have been devoted to labor for the benefit of plaintiff and his family authorized an instruction that he could recover for future loss of wages and impaired earning power. In substance these are equivalent phrases. Smith v. St. Louis Transit Co., 133 Mo.App. 202. (3) Evidence of impaired earning capacity having been admitted without objection, an instruction covering the point was proper. Madison v. Railroad, 60 Mo.App. 599; Mellor v. Railroad, 105 Mo. 455; Litton v. Railroad, 111 Mo.App. 146.
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 two and one-half inches deep and had a board fitted into it two inches thick by eight 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 three 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 sixteen 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 three feet wide according to plaintiff's evidence. The doorway through which the truck was being pushed when the injury occurred was four feet wide. The top of the bin, measured from the floor, was three feet and six inches high, and the truck was three and one-half 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 fifteen hundred 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 wheels out of the hole; that it was backed some six or eight 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....
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