Watson v. Energy Const. Co.

• Decision Date: 17 July 1926
• Docket Number: No. 3950.,3950.
• Parties: WATSON v. ENERGY CONST. CO.
• Court: Missouri Court of Appeals

286 S.W. 715

WATSON v. ENERGY CONST. CO.

No. 3950.

Springfield Court of Appeals. Missouri.

July 17, 1926.

Rehearing Denied August 31, 1926.

Appeal from Circuit Court, Butler County; Charles L. Ferguson, Judge.

Action for personal injury by George Watson against the Energy Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Henson & Woody, of Poplar Bluff, for appellant.

Sam M. Phillips, of Poplar Bluff, for respondent.

BRADLEY, J.

This is an action for personal injury. The cause was tried before the court and a jury; plaintiff recovered, and defendant appealed.

Defendant was engaged in road construction on highway No. 16, a few miles east of Poplar Bluff, in Butler county, and plaintiff on the date of his injury was in defendant's employ, and had been for about a month. Plaintiff drove a team, hauling machinery, dragging pipe line, and pulling out dead trucks. Plaintiff resided in Poplar Bluff, and he, with other employees, rode out at morning and back at night in the trucks of defendant. About quitting time July 30, 1924, there was a dead truck to be pulled about a mile, or possibly more, to the place of repair. Plaintiff hitched his team to this truck, but was not able to move it. He put his team up, and while he was gone the dead truck was attached to another truck by means of an inch or inch and a half rope about 75 feet in length. One end of the rope was fastened to the dead truck, and the rope was then placed around the rear axle of the forward truck, and tied in a loop knot, so that the rear or dead truck would be about 12 or 15 feet from the front truck, when the trucks were moving with the rope taut. The unused portion of the rope, some 50 or 60 feet in length, was thrown into the forward truck in a kind of heap or coil.

Thus arranged for pulling the dead truck to the place of repair, nine or ten men, employees, including plaintiff, got into and stood in the bed of the forward truck, to return to Poplar Bluff after the day's work. It had rained all or a good part of the afternoon, and everything was wet, muddy, and slippery. The road dump over which the trucks had to travel was muddy and cut with deep, zigzag ruts and "chug holes." Marion Bristow, an employee, and Joe Dodson, defendant's team and grader foreman, rode in the dead truck, and Bristow had the wheel and guided it. The trucks had traveled about a quarter of a mile, when the loop knot on the axle of the forward or live truck came loose or untied. Thereupon the dead truck stopped, and, the forward truck still going, the heap or coil of rope in the forward truck was drawn out, and in so doing wrapped about plaintiff's left leg, jerked him down, and, before the forward truck was stopped, drew his foot or leg against the end of the truck bed, causing a rather severe injury to his foot and ankle.

Plaintiff relied upon the alleged negligent manner in which the rope was attached to the forward truck, and also the alleged negligent act in throwing the remainder of the rope into the bed of the forward truck, where plaintiff, with others, would stand on the way back to Poplar Bluff.

Defendant answered by general denial, a plea of contributory negligence, and also set up the defense that the rope was attached to the trucks by a fellow servant, for whose negligence, if any, defendant was not liable.

Defendant makes several formal assignments, but three only are considered in the brief and argument. These are: (1) That the court erred in refusing defendant's request at the close of the case for a directed verdict; (2) that plaintiff's instruction No. 1 is erroneous and prejudicial; and (3) that plaintiff's instruction No. 1 is in conflict with defendant's instruction A.

The demurrer, it may be said, is based upon four propositions: (1) That there was no substantial evidence tending to show that the rope was negligently tied to the forward truck and the surplus thereof thrown in the bed of said truck, where plaintiff and other employees were to stand on the way back from work; (2) that plaintiff was guilty of contributory negligence; (3) that plaintiffs day's work was ended when he was injured, and that the relation of master and servant did not then exist; and (4) that the acts of negligence relied upon were acts of a fellow servant, for which acts defendant would not be liable.

In view of the conditions obtaining, we think that the alleged negligence respecting the manner in which the rope was tied and the surplus thereof thrown into, the forward truck, and also the question of contributory negligence, were, to say the least, questions for the jury; hence we shall pass to the other two propositions.

As stated, defendant's employees assembled in the morning at its office in Poplar Bluff, and rode out to the place of work in its trucks, and rode back at night in the same manner. It was not definitely shown that defendant was to furnish transportation, but it had done so from the beginning. Whatever may be said as to an agreement to furnish transportation, the fact remains that defendant undertook to furnish transportation, and, having undertaken this service, it was its duty to exercise ordinary care to furnish reasonably safe means of transportation. In view of the constant course of conduct on the part of the defendant in transporting its employees to and from their...