Sands v. Pabst Brewing Company
| Decision Date | 08 June 1908 |
| Parties | WILLIAM SANDS, Respondent, v. PABST BREWING COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thomas J. Seehorn, Judge.
REVERSED.
Judgment reversed.
Harkless Crysler & Histed for appellant.
(1) The evidence failed to show any negligence on the part of the defendant. (2) There was no causal connection between the alleged defect in the brake and plaintiff's injury. Trigg v. Ozark Land Co., 187 Mo. 227; Shore v Bridge Co., 111 Mo.App. 278. (3) A wagon brake is of that class of simple and universal tools which are matters of common knowledge and of which the court may take judicial knowledge. Post v. Railroad, 121 Mo.App. 562. (4) The condition was as equally open to inspection and knowledge by the plaintiff, as by the defendant, and plaintiff had the same opportunity to observe and know the condition of the brake before he started with the load that the defendant had and must, therefore, be held to have assumed the risk. Meyers v. Glass Co., 107 S.W. 1041. (5) Plaintiff himself was guilty of negligence in the manner in which he drove the wagon and manipulated the brake.
T. A. Milton and E. J. Sherlock for respondent.
(1) The appellant was bound to furnish to respondent a wagon that was reasonably safe for the purpose of carrying such a load over such roads as the respondent had to travel in making the delivery, as shown by the evidence. (2) The respondent exercised all the care he was required to exercise when he inquired of the foreman, at the time he was about to start with his load, whether this wagon was in order and was assured by both of them that the wagon was in order and to take it and go ahead; no defect was obvious to the respondent. (3) Respondent had a right to assume that his employer would not give him a wagon that was out of order to perform a service so dangerous, as the evidence shows this to have been. (4) It was not the respondent's duty to know anything about the condition of this wagon, which was not the wagon used by him, unless the defect was so obvious that no prudent man would incur it under like circumstances. (5) But it was the duty of the appellant to know the actual condition of the wagon when it assured the respondent that the wagon was in order, when he inquired concerning its condition and they ordered him to use it. Tuckett v. American S. & H., 4 L. R. A. 990.
Plaintiff was in defendant's employ as a teamster and was mainly engaged in delivering beer in barrels and bottles to defendant's customers. While returning from a delivery trip he was thrown from the wagon and suffered the injury for which this action was brought. He recovered judgment in the trial court.
It appears that plaintiff at the time of his injury was about thirty-eight years old and had been engaged in driving wagons for more than twenty years. He had been driving for defendant in delivering beer for four or five years. The wagons and teams were furnished by defendant. He had driven the wagon he was using when hurt perhaps once, about three weeks before. He reported the brake as needing repair and the foreman directed to take it to the shop for repair. He did so and saw nothing more of it until the day of his injury. On that day he had been out delivering beer in Kansas City and when he returned, about one o'clock, the foreman told him he must take a load out about nine miles to a village called Sugar Creek. He protested that it was too late to make the trip, but the foreman ordered him to go. He was put in charge of this wagon which he had taken to the shop to be repaired, and after receiving a statement from the foreman that the wagon was all right, and doubtless remembering that he had taken it to the shop for repair and supposing it had been repaired, he put on his load, took an assistant along and started for Sugar Creek. On the way out he had to go up and down hills and thereby soon discovered that the brake was still out of repair and would not work properly. But he said that he could not well turn back and so kept on his way and made his delivery, getting through about nine o'clock at night. He then loaded his wagon with empty beer barrels and cases and started on the return trip. He came to a hill and as...
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