Whitehead v. Fogelman
| Decision Date | 08 December 1931 |
| Docket Number | No. 21674.,21674. |
| Citation | 44 S.W.2d 261 |
| Parties | WHITEHEAD v. FOGELMAN et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.
"Not to be officially published."
Action by Edward Whitehead against W. F. Fogelman and M. J. Davidson, doing business as the Fogelman & Davidson Construction Company. From a judgment for plaintiff, defendants appeal.
Reversed and remanded.
Terry & Terry, of Festus, for appellants.
Louis Martin Wolf, of St. Louis, E. C. Edgar, of De Soto, Clyde Williams, of Hillsboro, and Arnot L. Sheppard, of St. Louis, for respondent.
This is an action for damages for personal injuries alleged to have been sustained by plaintiff while in the employ of defendants, on October 16, 1926. The verdict of the jury was in favor of plaintiff, and against defendants, in the sum of $3,500; and from the judgment rendered, the latter have duly appealed.
The defendants do business as the Fogelman & Davidson Construction Company; and at the time in question they had a contract for the construction of the highway leading eastwardly from De Soto, Mo., to its junction with highway No. 61. The particular work which was being done at the time the accident occurred was in connection with the construction of a concrete culvert across the highway. A ditch or trench had been dug in which the culvert was to rest; the forms for the concrete had been put in place; and the liquid concrete was being taken from the mixer and poured into them. In the course of his work, plaintiff was using a wheelbarrow, which was so constructed that a tubular two-inch pipe ran all the way around it, the ends of the pipe protruding in the rear, and forming the handles for the wheelbarrow. After the wheelbarrow was filled at the mixer, which was stationed in approximately the middle of the highway, it was pushed up a runway, and then emptied into the forms below.
For the purpose of assisting in getting the loaded wheelbarrow up the runway in those instances when the load was too heavy for one man to handle it alone, a half-inch bar of iron or steel, with a hook on the end of it, was habitually used by the men on the job. The hook itself was two or two and one-half inches in length, and the entire bar some three or four feet in length. The bar would be held by one of the men, who would be stationed upon the runway in front of the wheelbarrow, and, as the wheelbarrow was being pushed up the runway, he would catch the hook around the pipe which extended out in front of the wheel, and would then pull upon the wheelbarrow, while his coemployee, who had hold of the handlebars, pushed against it in the ordinary manner.
On the occasion in question, plaintiff was pushing the wheelbarrow, while one William Courtois was in front of him on the runway for the purpose of using the bar in the fashion described above. Courtois caught the hook around the pipe, either before the wheelbarrow ever left the mixer, or else shortly thereafter, and began to pull upon it, but, as extra pressure was applied to move the wheel over some gravel which had dropped upon the runway, the hook either broke or straightened out, thus permitting the entire weight of the loaded wheelbarrow suddenly and unexpectedly to be cast back upon plaintiff, and causing him to lose his balance, and to be thrown off the runway down upon the rocks some three or four feet beneath.
It appears that the runway up which the wheelbarrows were pushed was made of a one-by-eight inch board, which was laid upon and supported by the top of the reinforced steel frame for the side and top of the culvert. The runway was twelve feet in length, and sloped upwards to a height of two and one-half or three feet. As to the fitness of the runway for the purpose for which it was intended, plaintiff's own testimony was that "the board did not break, the steel form did not give way; it was a little wiggly, but it stood up."
With regard to the use of the hook, the evidence disclosed that, if the particular bar was not a piece of steel intended for the reinforcement of the concrete, it was at least about that size, though it may not have been of the same material, that it was regularly used in the progress of the work, and that on the day in question it had been in use for something more than an hour before the accident occurred. While there was only the one hook in use on that particular day, it seems that different hooks were used throughout the work, that they were not always of the same material, and that the hooks were usually moved from one culvert to another. When and by whom the identical hook was made does not appear; the record showing no more than that "it was put there, and the shovelers were using it."
The testimony was that the wheelbarrow would hold from two hundred fifty to three hundred pounds of concrete. Plaintiff had been directed to take the wheelbarrow by one Hays, the foreman in charge of the construction of culverts. His duty required him first to place the wheelbarrow under the spout of the mixer, where it was filled, and then it was to be pushed to the top of the culvert, and emptied into the forms for the sides. Apparently the size of the load was left to the one in charge of the mixer, or at least to some one other than plaintiff; and it was undisputed that the particular load was too heavy for one man to handle alone.
The substance of the negligence pleaded and submitted by plaintiff was that defendants had provided and maintained a runway which was steep, narrow, and unsteady, that the wheelbarrow was overloaded, and that the hook which was provided for pulling the wheelbarrow was weak and defective, in that it was likely to break, twist, or loosen its grip.
The joint answer of defendants was a general denial, coupled with pleas of contributory negligence and assumption of risk.
No reply was filed, but the case was tried upon the theory that all of defendants' pleaded affirmative defenses had been duly put at issue.
As a matter of first insistence, defendants argue that their requested peremptory instruction in the nature of a demurrer to all the evidence should have been given; and the point they make is that, not only was there no substantial evidence of their own negligence in either of the respects pleaded, but also that plaintiff assumed the risk of his injury, and should be charged with contributory negligence as a matter of law.
We cannot agree with this contention. Plaintiff's injury directly followed the breaking or straightening of the hook, and the question of its sufficiency is therefore of vital consequence. It was such a tool as was regularly used in the prosecution of the work, and there is no pretense that it was prepared or selected by plaintiff himself. But, regardless of who may have prepared or selected it, defendants are nevertheless to be charged with knowledge of its use, for, aside from the regular custom of pulling the wheelbarrows in that identical manner, the foreman, Hays, was present on the job that very afternoon, in active charge of the details of the work.
Since the method of work adopted by defendants required the pulling of loaded wheelbarrows up the runway with hooks of that character, it was the nondelegable duty of defendants to have exercised ordinary...
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