State ex rel. Jones v. Cox

• Decision Date: 30 December 1929
• Docket Number: 29430
• Citation: 23 S.W.2d 112
• Parties: STATE ex rel. JONES v. COX et al., Judges
• Court: Missouri Supreme Court

23 S.W.2d 112

STATE ex rel. JONES v. COX et al., Judges

No. 29430

Supreme Court of Missouri

December 30, 1929

Everett J. Hullverson and Mark D. Eagleton, both of St Louis, Sizer & Gardner, of Monett, and Hensley, Allen & Marsalek, of St. Louis, for relator.

James E. Sater, of Monett, and Ernest A. Green, of St. Louis, for respondents.

In Banc.

All concur except WALKER, J., absent, and WHITE, C. J., who dissents.

OPINION

RAGLAND, J.

Certiorari. Relator seeks to have quashed, on the ground of conflict of decision, the judgment and opinion of the Springfield Court of Appeals in the case of Charles Jones, Respondent, v. M. E. Gillioz, Appellant, 9 S.W.2d 89, lately pending before that court on appeal. The opinion follows:

'Action for damages for personal injury, based on negligence of defendant. Plaintiff recovered $ 7,500, and defendant appealed.

'The petition contains nine specifications of negligence. The answer contains a general denial, and plea of contributory negligence, assumption of risk, and a plea that plaintiff's injuries were the result of an accident.

'Appellant demurred to plaintiff's evidence, and now insists that this demurrer should have been sustained. There was sharp conflict between the evidence for plaintiff and defendant as to how the injury occurred and the cause of it, but in considering a demurrer to the evidence we must, of course, disregard all of defendant's testimony, unless it strengthens plaintiff's case, and regard all of plaintiff's testimony as true. Looking to the plaintiff's testimony, we find that it tends to establish the following facts: Defendant was a road contractor, engaged in building state roads. Plaintiff had been in the employ of defendant as a common laborer, to help in road building, for about three years, and was familiar with the work. On the day on which plaintiff received his injury, he, with two other men, was engaged in dragging logs together, so they could be piled up and burned. These logs were pulled to the place where they were wanted by a team of horses. A chain was fastened around the log near the butt, and the horses then hitched to the chain and the logs pulled to their place. On this day there were three men at work -- Y. R. Downum, who at the time was in charge of the work for defendant, and is referred to by the witnesses as the boss, who gave the orders for doing the work. Burl Chambers, who handled a team of horses with which the logs were pulled to their place; and plaintiff, who fastened the chain to the logs. Three logs, which were lying in such a position that they were pulled straight forward, had been pulled to their places on that day prior to plaintiff's injury. The fourth log to be moved lay across the pathway along which the logs were to be moved, and had to be pulled around straight before being pulled forward. This log laid with the butt end near a stump, and, when the horses started to pull it, that end caught on the stump and held, so that the pulling of the horses caused the rear or small end of the log to switch around and strike plaintiff. His leg was badly broken, and he suffered a severe injury. The plaintiff testified that they had been using a log chain about 7 feet long to hitch to the log, and it was fastened in about one foot of the butt end of the log, but that chain was not there when they started to work on that morning. He asked his boss, Mr. Downum, about the chain; but he said it had been misplaced, and then directed plaintiff to use a plow chain that was about 15 feet long. Plaintiff did so, and attempted to fasten it to the log at about one foot from the butt end, as he had fastened the shorter chain; but the boss, Mr. Downum, told him to hook the chain back 7 or 8 feet because, if hooked near the end, the team would be too far from the load and they could not get around through the trees and stumps. He did as the boss told him to do, and hitched the chain back as nearly that distance from the end of the log as he could. He then stepped away and started, as the boss had previously told him, to go to another log and get it ready to be moved. He heard the log strike a stump, and at that time the driver of the team, Burl Chambers, said to the boss: ' 'We had better pull this back and get it off of there some way.' Mr. Downum then said to Chambers: 'Hell, no! they can pull it over there; get out of there, and go on.' He squealed at the team, and threw a chunk of mud at them, or something, and hit them. I heard the team run up against it, and as I wheeled around to look to see what they were doing, the top end of it came around and struck me on the leg.'

'The foregoing are the chief facts upon which plaintiff must rely to show actionable negligence on the part of defendant. On this evidence it appears that plaintiff was rightfully at the place where he was when the log switched around and struck him, and we find nothing in this testimony to show contributory negligence upon his part. One of the elements of negligence of defendant, if negligent at all, consisted in the use of a chain so long that it was necessary to fasten it to the log back 7 or 8 feet from the end. That fact alone however, could not be a negligent one, unless it were followed up with evidence that there were stumps or obstructions in the way on which the front end of the log would probably catch, and by catching cause the rear end of the log to switch around and come in contact with any person then in the are of its swing, and that the boss in charge for defendant was in a position where he could have seen that it would probably catch and cause the log to switch around. Such further evidence is only in this case by inference, but there is probably enough evidence to take that question to the jury. According to plaintiff's testimony, the end of the log was near the stump on which it caught before the chain was fastened to it. The foreman was close enough to see that plaintiff attempted to fasten the chain near the end of the log, and directed him to place it back 7 or 8 feet. He should have seen the stump at the same time. The mere use of a long chain, instead of a short one, and fastening it back 7 or 8 feet from the end, was not, however, the proximate and sole cause of...