Simmons v. Kroger Grocery & Baking Co.

• Decision Date: 05 June 1928
• Docket Number: No. 20100.,20100.
• Citation: 6 S.W.2d 1023
• Court: Missouri Court of Appeals
• Parties: SIMMONS v. KROGER GROCERY & BAKING CO.

6 S.W.2d 1023

SIMMONS v. KROGER GROCERY & BAKING CO.

No. 20100.

St. Louis Court of Appeals. Missouri.

June 5, 1928.

Rehearing Denied June 21, 1928.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

"Not to be officially published."

Action by Elijah Simmons against the Kroger Grocery & Baking Company. Judgment for the plaintiff, and the defendant appeals. Affirmed.

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

Eugene J. McMahon, of St. Louis, for respondent.

BECKER, J.

The defendant below brings this appeal from a judgment for $1,250 in favor of plaintiff in an action for damages for personal injuries alleged to have been sustained while plaintiff was in its employ.

The record discloses that at the close of plaintiff's case the defendant offered an instruction in the nature of a demurrer to the evidence, which was refused, and defendant stood upon its demurrer. The case went to the jury on instructions requested by plaintiff, which submitted the case upon two of the assignments of negligence in the petition. No exceptions were filed to the giving of the instructions.

The sole question before us on this appeal is whether or not the defendant's demurrer offered at the close of the case was well ruled.

Testing the evidence under the rule that on demurrer plaintiff's evidence must be taken as true and the defendant's testimony, where contradicted, taken as false, and a low the plaintiff's case the benefit of every reasonable inference of fact arising on all the proof (Williams v. Ry. Co., 257 Mo. 87, 165 S. W. 788, 52 L. R. A. [N. S.] 443), there is evidence tending to prove that on July 18, 1923, plaintiff was in the employ of defendant as a laborer working in and about its warehouse; his particular duty being to unload freight, the method employed being to place hand trucks in the freight cars, and, when the hand trucks were loaded, a number of laborers, usually from four to six, would push them across a runway leading from the freight cars to the platform of the warehouse. These loaded trucks were then pushed by an electric truck to various elevators in the warehouse, so that the merchandise could be stored therein where wanted. It was necessary, in moving the trucks across the platform to the elevators of the warehouse, that an employee walk in front of the loaded hand truck holding a handle or bar to steer or guide the truck. In guiding the hand truck, the employee would walk facing in the direction in which the truck was to be guided, with his hands behind him holding onto the steering handle of the truck. On the occasion in question, the foreman in charge of the working crew, of which plaintiff was one, ordered them to hurry up and get a particular freight car unloaded. As soon as a hand truck had been loaded with boxes containing canned milk (the truck and its load weighing approximately 2,000 pounds), and had been pushed across the gangway from the freight car to the platform by workmen, the foreman directed an employee named Ray and plaintiff to take the loaded hand truck over to the elevator. Plaintiff was told to guide the truck. Ray's part in the work was to operate the electric truck which did the pushing.

According to plaintiff's own testimony, upon receiving the order to guide the truck while Ray operated the electric truck to push the hand truck to the elevator, he walked rapidly from the freight car across the running board to the platform to the right-hand corner of the loaded hand truck, for the...