Warren v. Curtis & Co. Mfg. Co.

• Decision Date: 08 November 1921
• Docket Number: No. 16558.,16558.
• Citation: 234 S.W. 1029
• Court: Missouri Court of Appeals
• Parties: WARREN v. CURTIS & CO. MFG. CO.

234 S.W. 1029

WARREN v. CURTIS & CO. MFG. CO.

No. 16558.

St. Louis Court of Appeals. Missouri.

November 8, 1921.

Appeal from St. Louis Circuit Court; G. A. Wurdeman, Judge.

"Not to be officially published."

Action by Oliver Warren, a minor, by Frank Warren, his next friend, against Curtis & Co. Manufacturing Company. Judgment for plaintiff, and defendant appeals. Reversed, unless remittitur entered.

Chas. E. Lorrow and Wilbur C. Schwartz, both of St. Lows, for appellant.

Frank H. Haskins, of St. Louis, for respondent.

BECKER, J.

This is an appeal from a judgment for plaintiff, against the defendant, in the sum of $1,500 for personal injuries sustained by plaintiff while in the employ of defendant.

Plaintiff's petition alleges that while in the employ of defendant his duty required him, under the direction of a foreman, to load and unload heavy ammunition shells from trucks, generally using for that purpose a lifting crane or magnet; that on October 31, 1016, he was required by defendant's foreman to unload certain of these ammunition shells in a hurry, and was ordered to roll the shells from the truck onto the ground by hand without waiting to use the lifting crane or magnet, and that while in the act of rolling one of the shells off of the truck by hand the rough edge of one of said shells caught onto one of the gloves worn by him (plaintiff) on his right hand in such a way that he was not able to release it, thereby causing the shell to fall onto his hand, necessitating the amputation of the end joint of the second finger of his right hand. The negligence assigned in the petition is that

"Defendant negligently failed to provide plaintiff with reasonably safe means of unloading said shells, in that the shells were heavy and difficult to handle by hand, and he was required to roll them off the truck by hand, instead of using a crane or lifting device; that defendant knew, or by the exercise of ordinary care would have known, that rolling them off by hand was dangerous, in that the shells were heavy and difficult to handle by hand, and the person so doing it was likely to get his fingers caught and crushed; that defendant knew, or by the exercise of reasonable care would have known, that the said shells were rough and likely to catch on the glove worn by the person handling same and crush his fingers; that plaintiff was inexperienced in unloading said shells by hand, and did not know of the danger aforesaid, and did not know that the said shells were rough and likely to catch in his glove and crush his fingers, and defendant knew, or by the exercise of ordinary care would have known, of plaintiff's said inexperience and lack of knowledge, and negligently failed to warn plaintiff of said danger."

The answer was a general denial and a plea of contributory negligence. The reply was a general denial.

Appellant's first assignment of error is that the court erred in overruling its demurrer to the evidence, in that the petition counts upon failure to provide reasonably safe appliances to unload the shells, and the negligent failure to warn plaintiff of the danger, and that there was no evidence that the defendant failed to furnish a reasonably safe appliance, and that it was not reasonably safe to roll the shells off the truck by hand. The point is without merit.

The testimony for plaintiff tended to prove each of the several allegations set up in his petition. Again, as we read the record, it may be viewed as being conceded on the part of the defendant that it was liable to plaintiff if plaintiff proved that he had been ordered by the foreman to roll the shells off the truck by hand, instead of using the lifting crane, and had not been warned that such a method was dangerous. It is readily apparent from a reading of the testimony why this question was not sought to be made a controverted issue in the case. It appears that the shells in question were heavy ammunition shells that were loaded upon trucks, the platforms of which were 2 feet from the ground. Each shell was 22 to 30 inches in length, and from 8 to 10 inches in diameter, and weighed from 180 to 240 pounds. These shells were made from steel billets each billet being sawed in half, thus making two shells thereof. Frequently the billets would be sawed but half through, and the remaining portion broken, which occasionally left rough edges on one end of the shells.

According to plaintiff's testimony, on the day in question the foreman ordered him to unload a truckload of shells, telling him that they were in a hurry to unload a freight car so as to be able to ship out a carload of shells; that the foreman ordered him to roll the shells off of the truck onto the ground by hand, to which he (plaintiff) objected "that we better use the crane," "that is dangerous," "I felt we had better use the crane," to which the foreman replied: "No, don't use the crane, we are in a hurry, If you don't want to do it that way you can go home." Plaintiff further testified that neither the foreman nor any one else had ever given him any instructions regarding the handling of these shells, nor told him that there was any danger in handling them. Plaintiff further testified that the shells were usually brought in on the trucks and unloaded by the use...