Smith v. Anderson Motor Service Co.

• Decision Date: 18 June 1925
• Docket Number: No. 18989.,18989.
• Citation: 273 S.W. 741
• Parties: SMITH v. ANDERSON MOTOR SERVICE CO.
• Court: Missouri Court of Appeals

273 S.W. 741

SMITH v. ANDERSON MOTOR SERVICE CO.

No. 18989.

St. Louis Court of Appeals. Missouri.

June 18, 1925.

Rehearing Denied July 7, 1925.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Brock Smith against the Anderson Motor Service Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Laughlin, Frumberg, Blodgett & Russell, of St. Louis, for appellant.

Lich & Miller, of St. Louis, for respondent.

DAVIS, C.

This is an action for negligence for furnishing a truck to plaintiff's employer, on which plaintiff was by his employer directed to work, the floor or bed of which was not in a reasonably safe' condition, resulting in injuries to plaintiff. The jury returned in favor of plaintiff a verdict for $4,000, defendant appealing from the judgment entered thereon.

The cause was submitted to the jury on plaintiff's evidence only, for defendant refused to offer any.

Plaintiff's evidence tends to show that, on December 22, 1921, plaintiff was directed by the foreman of his employer to board and accompany a truck, belonging to defendant, for the purpose of unloading, or aiding therein, two boxes of plate glass, the property of his employer, at a railroad freight depot; that plaintiff, a coemployee named Griffy, and the driver, rode on the truck to the depot; that these boxes were constructed of wood, were about 4 to feet long, 10 or 12 inches thick, 28 or 30 inches high when setting on edge, and, with the plate glass therein, weighed 700 or 800 pounds; that the first box unloaded was free of cleats, but the second box, the one which fell on plaintiff's leg had two 2x4 wooden cleats on the bottom edge, holding the box about 2 inches off the bed of the truck; that the floor boards ran lengthwise the truck from the front to the back, except one board, which was cut in two, 2½ or 3 feet from the rear end of the truck; that this board, cut in two, was rotten and loose where the ends joined; that the place where the ends joined was on the east side of the truck about a foot, maybe a foot and a half from the side of the truck; that when the boxes were run over the ends of the joined boards it was noticed they gave down, plaintiff could not say how far, maybe an inch or an inch and a half; that when they started to unload the box that fell on plaintiff, the box was setting about a foot from the east side of the truck; that the front of the truck was facing north, and the rear end, from which end they were unloading the boxes, to the south, with the left side, facing south, to the east and the right side to the west; that plaintiff and his coemployee, Griffy, in unloading this box were facing south, with plaintiff on the left of the box and Griffy on the right, pushing the box before them to the rear of the truck; that the grade of the street on which the truck was placed ran to the east, but the degree of the grade was not shown; that just two of them, plaintiff and Griffy, were trying to push the box off the truck, just before the box fell on his leg; that plaintiff stated, "We was pushing the box, and these cleats on the bottom would make it hard to push, and the end of the box would slide around pushing it; that it went on these loose boards and give way and turned over on his leg;" that plaintiff, in pushing the box south, placed his right leg behind and to the north of the box and his left leg to the left and east of the box, and his legs were in this position when the box fell over to the east on his leg; that plaintiff saw the boards where they were joined together give, and while he was pushing it out it turned over and struck his leg and came down until the end of the box struck an iron pipe lying lengthwise on the east side of the truck, and that threw it off his leg, the box falling on the floor of the truck; that just before the box fell the cleats on one end of the box were resting on the ends of the joined boards, and the other end of the box was pushed off the rear end of the truck; that when the end of the box struck where the two boards joined, it gave way and sank, throwing the box on his leg.

On cross-examination plaintiff stated that neither of these boxes was shorter than 46 inches; that the width of the boards on the bed of the truck, including the boards that gave way and sank, were about 5 inches; that the only thing he observed that was wrong was where the boards were joined; that by the boards giving away he meant "swag down;" that the first box was unloaded by putting rollers under it, but the second box could not be so unloaded on account of the cleats; that it was the northeast corner of the box that went down in the board—the board was loose; that he was pushing the box away from him, and not pulling it toward him; that these two 5-inch boards sunk down and overbalanced the box, and it fell; that the box was resting catacornered; that the box turned over of its own weight, and not because plaintiff pushed it over.

The following questions were asked plaintiff, and he answered as follows:

"Q. You mean to say that because this 5-inch board sunk down an inch or inch and a half under one corner of the box, that that was sufficient to overturn 800 pounds of glass right over against you, and throw the three other corners up in the air? A. Yes, sir; when it is setting on a slope.

"Q. How much of a slope? A. I couldn't say how much.

"Q. You have testified in four different trials, haven't you? A. Yes, sir.

"Q. You never said a word about a slope before, did you? A. It was never asked me.

"Q. Just thought about it now, did you? A. No; I thought about it."

Witness Creasin stated he heard some one say plaintiff got hurt out on the truck and saw him walk in, put his foot on a box, pull up his pants leg, and look at his leg; that witness, in going by the truck, took a look at it, and saw two boards where they came together kind of rotted and loose, 2½ or 3 feet from the rear of the truck; that the boards were 5 or 6 inches wide.

The pertinent portions of the petition are as follows:

"Plaintiff states that on December 22, 1921, he was employed by the Crystal Mirror Plate Company, and that he was instructed and directed by his employers, and it thereupon became his duty, to accompany defendant's driver on its truck, which had been hired by plaintiffs employers, to the freight depot to aid and assist said driver to unload a box of mirror plate; that when said truck arrived at the freight depot and was backed up to the platform, plaintiff proceeded to unload said box; that said box was very heavy, and that it was necessary for plaintiff and his assistants to push the box toward the rear of the truck in order to unload it; that while pushing and shoving said box toward the rear end of the truck, one corner of said box went across a point in the bed of said truck where two boards joined; that the ends of said boards were loose and not securely fastened, and when the corner of this heavy box weighed on said boards, the boards sank and gave way, throwing the box off balance, and causing it to fall eastward, and, in falling, to injure plaintiff as follows: [Here follow allegations of injuries.]

"Plaintiff states that it was the duty of the defendant to `exercise reasonable care to furnish a truck in a reasonably safe"condition and state of repair, but that it was negligent in this respect, in this, that the floor of bed of said truck was not in a reasonably safe condition and state of repair in that (a) the ends of the long board which ran to a point about 2½ feet from the rear of the truck and the abutting end of the short board which finished out the distance to the rear of the truck were rotten, decayed, weak and worn; (b) that the ends of both of said boards were not securely fastened to a sill or other solid board or base, and that they were loose and sprang and gave way when weight was put on them; (c) that the rear board was not securely fastened and was loose, and that, as plaintiff and his assistant were pushing said box over the juncture of the two boards aforesaid, the weight of said box caused the boards to drop and give way, and the corner of the box to sink, thus throwing said box off balance, and to fall to the east and injure plaintiff.

"Plaintiff states that the defective condition of said floor as hereinabove set out was known to the defendant, or could, by the exercise of ordinary care, have been known to it prior to the furnishing of said truck to haul said box from the Crystal Mirror Plate Company's place of business to the freight depot.

"Plaintiff avers that, because of defendant's negligence, as hereinabove set out, he has been damaged to the extent of $15,000."

[1, 2] I. Defendant attacks the petition on the ground that it fails to state a cause of action. The record shows that defendant, after the court overruled its general demurrer, further objected to the introduction of any evidence for the above reason; which objection the court disallowed, defendant excepting thereto. This practice is permissible, and error may be predicated on it. Applegate v. Railroad Co., 252 Mo. 173, loc. cit. 183, 158 S. W. 376, 378. However, in refusing to stand on its demurrer, and in waiting to the opening of the trial to object to the introduction of evidence, defendant has subjected itself to the rule of interpretation relative to a pleading set forth in Applegate v. Railroad, supra, reading:

"It is never sustained because of lack of certainty or definiteness in allegation, or for informality in the statement of essential fact, or because a cause of action is defectively or obscurely stated. Such objection is disallowed if (by reasonable intendment or fair implication from facts stated or by most liberal construction) the essential allegation may be pieced out or made clear by reasonable inference."

[3] Defendant's position, in its final analysis, is that the petition fails to establish a...