Slinkard v. Lamb Const. Co
| Decision Date | 08 April 1919 |
| Docket Number | 15240 |
| Parties | SLINKARD v. LAMB CONST. CO |
| Court | Missouri Court of Appeals |
Not to be officially published.
0n Motion for Rehearing, April 24, 1919.
Appeal from St. Louis Circuit Court; John W. McElhinney, Judge. Action by John F. Slinkard against the Lamb Construction Company. Judgment for plaintiff, and defendant appeals.
Judgment affirmed, and on motion for rehearing cause certified to Supreme Court.
John P McCammon, of Springfield, for appellant.
Rodgers & Koerner, of St. Louis, for respondent.
This is appeal from a judgment in the sum of $ 4,500 in favor of plaintiff on account of injuries received by plaintiff while he was unloading coal from a wagon at a quarry of the defendant in St. Louis county, on January 26, 1914. Plaintiff was employed by the Polar Wave Ice & Fuel Company, for which company he was at work when injured. The lamb Construction Company, defendant, owned and operated a quarry located on an unfrequented road, approximately 300 yards south of the Olive Street road in St. Louis county, and immediately north of what is known as Delmar Garden. The quarry covers an area of 250 by 200 feet, and has a depth of nearly 200 feet.
On the afternoon of the day on which plaintiff met with his injuries, and shortly before 6 o'clock, plaintiff was delivering coal at the quarry, having backed his wagon, to which was attached a team of horses, into a shed adjoining the engine or power house of the quarry situated immediately upon the west brink of the quarry. The horses were facing west. Some 30 or 40 feet in front of them was a steep embankment leading to a branch of the river Des Peres.
After plaintiff had backed his wagon up to the shed, which had been designated by the employees of the defendant company as the place for the unloading of the coal, plaintiff proceeded to the rear of the wagon, and standing upon the ground, began shoveling the coal from the rear of the wagon into the shed. The horses were not hitched, and the lines were placed on top of the coal in the wagon. Defendant's engineer and his father were in or about the engine house immediately adjoining the place where the coal was being unloaded, while in the quarry below the employees of the defendant company were at work breaking blocks of stone, some 4 or 5 feet by 2 1/2 to 3 feet thick, into smaller pieces, and for this purpose were drilling holes into the stone and inserting dynamite therein and exploding it, resulting in the breaking of the stone into smaller pieces. Such shots are designated "squib shots," and the testimony shows that the report of such explosions was about as loud as that of a 38 or 44 caliber revolver or shotgun.
According to the testimony, when the man who did the drilling, loading and firing was about to shoot, it was customary for him to cry. "Fire," so that the men in the quarry could shelter themselves against flying particles of stone; and when the flier lighted the fuse he would again give the warning. "Fire," and the men on the top of the quarry would repeat it. There is some testimony on the part of defendant that on the occasion in question such custom was observed; but according to plaintiff's testimony, however, no warning was given.
While plaintiff was thus engaged in shoveling the coal from the tail end of the wagon and at a time when there were still some two tons of coal in the wagon, one of these so-called "squib shots" was fired in the quarry below, and plaintiff's team became frightened and stated to run. Plaintiff immediately run from the rear of the wagon to the side of the team, intending to get hold of one of the bridles and stop the team to keep them from running into the creek. At or about this time that plaintiff was taking hold of one of the bits, a second blast was shot in the quarry below, adding to the fright of the horses, so that when plaintiff got hold of the bit and endeavored to quiet the team he was thrown down and trampled upon and was injured.
The negligence assigned in the petition was the failure on the part of the defendant to give a warning of the intention to fire the shot. The defendant's answer was a general denial and a plea of contributory negligence, in that plaintiff had failed to secure his horses while unloading the wagon and in not placing his lines within reach when he went to the rear of the wagon to unload it. Defendant further pleaded that plaintiff, at the time he met with his injuries, was employed by the Polar Wave Ice & Fuel Company, and had made a claim against said company, and that he had executed to said company a full and complete receipt and release of and for his claim for damages for said injuries in consideration of the payment to him of $ 61.50, and that the defendant was thereby released and discharged of and from any claim on account thereof. The reply alleged that there was no consideration for the alleged release. To the defense of no consideration for the release the defendant demurred, which demurrer was, however, overruled.
The release in question was introduced in evidence and reads as follows:
"Received of Polar Wave Ice & Fuel Company the sum of sixty-one 60/100 dollars, $ 61.50, which I (being of lawful age) acknowledge to be in full accord and satisfaction of a disputed claim growing but of a bodily injury sustained by me on or about the 26th day of January, 1914, for which bodily injury I, have claimed the said Polar Wave Ice & Fuel Company to be legally liable, which liability is expressly denied; and in consideration of said sum so paid I hereby remise, release and forever discharge the said Polar Wave Ice & Fuel Company, its successors and assigns form any and all actions, cause or causes of actions, claims and demands for, upon or by reason of any damage, lose, injury or suffering which heretofore has been, or which hereafter, may be, sustained by me in consequence of such accident and injury.
It is expressly understood and agreed that said sun of $ 61.50 is the sole consideration of this release, and the consideration stated herein is contractual, and not a mere recital; and all agreements and understandings between the parties are embodied and expressed herein.
As to the release, plaintiff was permitted to testify, over the objection of the defendant, that his employer had not paid him any money to sign the release; that he had signed a paper at the office of the Polar Wave Ice & Fuel Company, after he had become sufficiently well to attempt to begin work, but that no money was paid him at the time for the signing thereof; that, while ill and confined to his home, his employer had, at different times, left sums of money for him which aggregated $ 61.50, but that at the time he had met with his injuries the company owed him for wages some $ 12 or $ 14; that nothing was said regarding the signing of a release until he endeavored to return to work, which was some weeks after the date of the accident, when, as above stated, he signed the release at the office of the company, but was not paid any money or anything else for the signing of it at the time.
William Preckel, a witness for the defendant, testified that he was a branch manager for the Polar Wave Ice & Fuel Company; that he was present when plaintiff signed the release in question; that he was not sure whether any sum of money was paid to plaintiff at that time for the signing of the release. The witness further stated, however, that he had taken money to the plaintiff's home prior to the time when plaintiff had returned to work and signed the release.
I. Appellant contends that the learned trial court erred in admitting testimony for plaintiff over the objections of defendant in permitting plaintiff to contradict, by parol the release in evidence and the statements therein contained.
In view of the fact that the defendant company...
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