Smith v. Siedhoff
| Decision Date | 08 March 1948 |
| Docket Number | No. 40254.,40254. |
| Citation | 209 S.W.2d 233 |
| Parties | SMITH v. SIEDHOFF et al. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Franklin County; R. A. Bruer, Judge.
Action by Arthur Smith against Robert A. Siedhoff and others for injuries sustained when defendants struck some steel beams which plaintiff was helping to unload from a railroad car. Judgment for plaintiff and defendants appeal.
Reversed and remanded for a new trial.
Frank W. Jenny, of Union, and Wm. Waye, Jr., of St. Charles, for appellants.
Leo A. Politte, of Washington (George E. Heneghan, of St. Louis, of counsel), for respondent.
Arthur Smith, plaintiff below, had judgment in the Franklin County Circuit Court for $12,000.00 against defendants' C. B. Young and Ed Young, partners, doing business as St. Clair Feed Co., and against defendant, Robert A. Siedhoff, their truck driver, as damages for personal injuries. Defendants have appealed. We will refer to the parties as plaintiff and defendants. The injuries resulted about 10:30 A.M. on February 1, 1946, at Front (sometimes in the record called Main Street) and Jefferson Streets in Washington, Missouri, when defendants' truck struck some steel beams which plaintiff was helping to unload and move from a coal car which was standing on a railroad switch track.
Plaintiff pleaded primary negligence and also a violation of the humanitarian rule, in that defendants, and their truck driver, Siedhoff, could have avoided striking the steel beams and thereby injuring plaintiff by stopping, or reducing speed, or swerving, or sounding the horn on the truck. Plaintiff's instruction 1 submitted his case disjunctively on all four alternatives of his humanitarian allegation. Instruction 2 predicated a verdict for plaintiff on Siedhoff's failure to stop the truck, and instruction 3 predicated a recovery by plaintiff upon the theory that Siedhoff attempted to drive the truck and to pass between the steel beams and the railroad car when there was not sufficient room to drive between them.
The contention of defendants in this Court that the record facts, and proper inferences therefrom, did not make a case which the trial court could have submitted to the jury requires a full statement of the facts upon that issue. It is axiomatic that under these circumstances we consider the record facts and the reasonable inferences therefrom in the light most favorable to the verdict below, that we give plaintiff the benefit of every favorable inference which the evidence tends to support and disregard defendants' evidence unless it aids plaintiff's case.
Front Street was level, paved, extended east and west, and was immediately south of, parallel to and abutted the railroad switch track upon which stood the coal car from which the steel beams had just been unloaded. Jefferson Street extended south from Front Street (but did not extend north from Front Street), was also paved, and was 33 feet wide. At the southeast corner of the intersection was a fire hydrant. The coal car, approximately 40 feet long, was spotted on the first track north of Front Street with its west end a little west of the west line of Jefferson Street and its east end a little east of the east line of Jefferson Street. From the south side of the coal car measured south across Front Street to the fire hydrant at the southeast corner was only 25 feet. The coal car had been loaded with steel construction beams or joists. Each beam was 21 feet long but weighed only 125 pounds. The steel beams were consigned to plaintiff's employer, Ed Rau, a contractor. Mr. Rau had sent a crew to unload them. Plaintiff was one of the unloading crew. The metal sides of the coal car, extending up about 4½ feet above the floor of the car, were about 2 feet higher than the tops of the steel beams.
The steel beams were being removed from the coal car, moved south across Front Street, deposited on the pavement, and from that point were moved away by a tractor. A large truck was used to remove them from the coal car and across Front Street. On the back of the Rau truck there was a large metal "A" frame which was bolted to the truck body. A cable ran from a winch located in the truck back of the cab. The winch, and a cable, which ran through a pulley at the peak of the "A" frame were power operated from the cab of the truck. The pulley at the peak of the "A" frame was 19 feet above the pavement and 5 feet behind the rear end of the truck. In the operation of unloading the beams from the coal car the truck was backed north across Front Street, to near the side of the coal car, and to the approximate center of the steel beams in the coal car. The cable at the end of which was a chain, was then lowered into the car; a workman in the car then secured the chain through the top of a number of steel beams; the power was then applied to the winch, cable and chain; the steel beams were then lifted above the side of the coal car; the truck then moved forward to move the beams south of the south side of the car; the beams were then lowered near to the pavement; plaintiff then took hold of the east end of the beams and the truck was then driven south across Front Street and the beams deposited on the paving on Jefferson Street. As the beams were slowly moved across Front Street, plaintiff walked along the pavement to steady and guide the beams by holding to the east end thereof. The operation of unloading and moving the beams across Front Street and into Jefferson Street necessarily blocked all east and west traffic on Front Street. Four or five loads had already been lifted out of the car, safely carried across Front Street and placed in Jefferson Street.
It was on the next load that the plaintiff's injury occurred. Eleven beams had been bound together with one loop of the chain. They were lifted out of the coal car, lowered near to the paving just immediately south of the side of the coal car, plaintiff took hold of the east end to guide and steady them and the Rau truck started moving them slowly south across Front Street to deposit the beams in Jefferson Street. The Rau truck, moving south at about 1 mile per hour, with the load of beams hanging out behind it had completely blocked all east and west traffic on Front Street.
The defendants' truck driven by Siedhoff, was 24 feet long, 7 feet wide, and had a slatted body. Siedhoff had started out from defendants' place of business on Front Street, about three blocks west of Jefferson Street, to deliver a load of merchandise to a local store. He drove east on the south side of Front Street, and as the truck approached Jefferson Street Siedhoff saw Front Street entirely blocked by the Rau truck and the load of beams hanging on the "A" frame behind it, and brought defendants' truck to a stop on the south side of Front Street at a point west of Jefferson Street. Siedhoff stopped the truck momentarily only. He then drove northeast to within a foot or six inches of the south side of the coal car in an effort to move on east on Front Street by attempting to pass between the south side of the coal car and the north side of the steel beams. While so doing the truck struck the west end of the steel beams, and threw plaintiff and the east end of the beams up against the fire hydrant at the southeast corner of the intersection. Plaintiff's right leg was so badly mashed between the steel beams and the fire hydrant that it had to be amputated below the knee. Plaintiff was otherwise injured.
The west end of the steel beams were first struck by the right front corner of the body of defendants' truck, the beams bounced back, then struck, broke and went in through the slatted side of the body of the truck and came out through the top of the body of the truck. At the time that the truck struck the west end of the steel beams, the west end of the beams were a little higher than the east end, were also a little further north than the east end, and were approximately eight feet south of the south side of the coal car. From the time it started up after its momentary stop west of Jefferson Street, until it struck the beams defendants' truck moved very slowly. The distance the truck moved before striking the beams is not disclosed by the record. It could have been only a very few feet. The force of that collision moved the defendants' truck over against the coal car and the truck finally came to a stop near the east end of the coal car. When the defendants' truck stopped the end of the beams which had perforated the truck were slightly east of the end of the beams which had pinned plaintiff against the fire hydrant. Plaintiff testified he was intent on watching his work, was "watching toward Mr. Kleinheider" (the driver of the Rau truck, which was pulling the steel); that he saw the defendants' truck, noticed it stopped near the west side of Jefferson, but didn't think it was going to start through there, that he was watching Kleinheider "in order to watch my work there, in order to get the steel down on the ground". Other facts will be later noticed.
The above facts present a case which the trial court was justified in submitting to the jury upon proper instructions. Siedhoff drove defendants' truck east on Front Street and approached Jefferson. He saw "the entire street" blocked by the unloading operation. He testified he stopped "about a moment". He further testified that he was "compelled to go to the left (northeast) for the beams were moving up (toward) Jefferson". Siedhoff saw plaintiff at the east end of the beams. Why Siedhoff felt "compelled" to start up he did not explain. Moving south across Front Street at only one mile an hour the steel beams would have moved across Front...
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