Smiley v. Jessup
| Decision Date | 02 March 1926 |
| Docket Number | No. 19349.,19349. |
| Citation | 282 S.W. 110 |
| Parties | SMILEY v. JESSUP. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.
"Not to be officially published."
Action by Leland Smiley against Vincent E. Jessup, doing business under the name of the Jessup Motor & Supply Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Rendlen & White, of Hannibal, and Ras Pearson, of Louisiana, Mo., for appellant.
Berryman Henwood, of Hannibal, and Hostetter & Haley, of Bowling Green, for respondent.
This is an action for damages for personal injuries sustained by plaintiff on December 1, 1923, while attempting to move an automobile with the aid of a red devil jack in defendant's garage in Hannibal, Mo. The verdict of the jury was for plaintiff in the sum of $500, and judgment was entered thereon, from which defendant has appealed.
In plaintiff's amended petition it was alleged that defendant was negligent in ordering and directing plaintiff to move the automobile with a dangerous and unsafe jack, in failing to instruct him in regard to the safe and proper manner of handling and manipulating the jack, and in failing to warn him of the dangers incident to the use of the jack.
The answer was a general denial coupled with pleas of contributory negligence and assumption of risk.
The reply was conventional.
Plaintiff entered defendant's employ on November 20, 1923. At that time he informed defendant that he had never worked in a garage before, but that he could drive any make of automobile. Defendant assigned him to a position in the stock or supply department, where his duties were to furnish repair parts to the mechanics and to sell supplies and automobile equipment to the trade. For one hour each morning plaintiff assisted in moving cars out of the parking section of the garage to the street, and for an hour each night at the close of the day's business he ran them back inside.
Defendant's garage was equipped with a red devil jack, which consisted of a truck on three wheels, at the rear of which there was a lever four feet long and weighing 45 or 50 pounds, by means of which the hoisting part of the jack was raised or lowered. The evidence disclosed that this was the ordinary type of heavy jack used in practically all garages.
Plaintiff had never used this or any other kind of jack, except the small jack that is carried in automobiles for use in changing tires on the road. During the eleven days he had been employed by defendant he had at times observed the other employés moving cars by using the red devil jack to raise the rear end off of the floor, but he himself had always moved the cars by engine power.
On December 1, 1923, defendant directed plaintiff to take the red devil jack and move a Dodge sedan from one side of the garage to the other. Neither at that time, nor prior thereto, had defendant or any of the other employés ever explained the operation of the jack to plaintiff. He pushed the jack under the housing of the rear axle, placed his foot by the side of the jack in order to steady it, and pulled down on the lever with full force, whereupon the jack slipped from under the housing, throwing plaintiff back upon the floor. The lever struck plaintiff's right ankle joint, fracturing the leg at that point. It was disclosed that to use the jack with safety it was necessary that the point of contact between the jack and the automobile be made secure and that pressure be applied on the lever gradually, neither of which precautions plaintiff knew to take.
Defendant first assigns as error the action of the court in overruling the demurrer offered at the close of plaintiff's case. However, defendant did not stand upon this demurrer after it was overruled, but put in his own evidence, and consequently the correctness of the court's ruling in refusing the demurrer to all the evidence is the only point to be reviewed. Canty v. Halpin, 242 S. W. 94, 294 Mo. 96; Frye v. St. Louis, I. M. & S. R. Co., 98 S. W. 566, 200 Mo. 377, 8 L. R. A. (N. S.) 1069; Simpson v. Wells, 237 S. W. 520, 292 Mo. 301; Burton v. Holman, 231 S. W 630, 288 Mo. 70; Kaemmerer v. Wells, 252 S. W. 730, 299 Mo. 249.
It is conceded that the red devil jack was in no wise defective, and that plaintiff was injured by reason of the fact that he did not use the jack in the proper manner. Defendant argues that plaintiff knew how to operate the jack; that he was attempting to operate it properly when injured, and that his act in placing the jack under the axle of the automobile in such manner that, when pressure was applied, the jack slipped was contributory negligence as a matter of law. Plaintiff, on the other hand, takes the position that he had never used the jack before and had never been instructed as to its use; that he was not aware of the danger to which he was exposed in operating it; that by reason of his ignorance of such danger it was defendant's duty to warn him thereof, and that defendant's failure so to do was negligence.
Plaintiff was 19 years old at the time he was injured. Viewing the evidence in the light most favorable to him, it appears that, when he entered defendant's employ, he informed defendant that he had never worked in a garage before; that he was assigned to the task of furnishing repair parts to the mechanics and of selling supplies to the trade; that, although for two hours each day he had assisted in moving cars, he always moved them by engine power, and had never used the jack in question; and that neither defendant nor any of the other employés had ever instructed him as to its use.
Was there danger attendant upon the use of the jack, if not operated properly, and, if so, was plaintiff ignorant of it? If the evidence discloses that the above questions are to be answered in the affirmative, there is no doubt but that it was defendant's duty to warn plaintiff of such danger. In fact our courts have gone so far as to hold that, even in a ease where the servant is a mature man and experienced in similar work, it is incumbent upon the master to warn him of dangers attending the character of work he is required to do, where the servant is unaware of such danger. Thornsberry v. St. Louis & S. F. R. Co. (Mo. Sup.) 178 S. W. 197; Crowl v. American...
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