Wilson v. J. G. Peppard Seed Co.

• Decision Date: 26 June 1922
• Docket Number: No. 14425.,14425.
• Parties: WILSON v. J. G. PEPPARD SEED CO.
• Court: Missouri Court of Appeals

243 S.W. 390

WILSON v. J. G. PEPPARD SEED CO.

No. 14425.

Kansas City Court of Appeals. Missouri.

June 26, 1922.

Rehearing Denied July 10, 1922.

Appeal from Circuit Court, Jackson County; James H. Austin, Judge.

"Not to be officially published."

Action by Charles Wilson against the J. G. Peppard Seed Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Lathrop, Morrow, Fox & Moore, George J. Merserean, and Winston H. Woodson, all of Kansas City, Mo., for appellant.

W. W. Holloway, of Kansas City, Kan., and Atwood, Wickersham & Hill, of Kansas City, Mo., for respondent.

THIMBLE, P. J.

Plaintiff, employed at defendant's grain elevator, was in the act of climbing into a freight car for the purpose of unloading grain therefrom when his toe caught in some burlap nailed on the chute whereon he was standing, thereby causing him to lose his balance and topple backwards, striking his back and hip upon the iron edge of the defendant's cement dock, and seriously injuring him. He brought this suit for damages, and recovered a verdict and judgment of $5,000, from which defendant prosecutes this appeal.

For the purpose of receiving and shipping seeds or grain in carload lots, defendant maintained, at the side of its plant, a long cement dock about 4 feet high. Alongside of and a few feet from the dock was a switch track, on which cars loaded with grain stopped opposite openings in the side of the dock. These openings began 3 inches below the top of the dock, and extended downward to about 18 inches from the ground, and are called grain chutes. In order to allow grain being unloaded to run from the side door of the car into the openings or grain chutes in the side of the dock a runway several feet long and about 2½ feet wide was set up, extending from the car doorsill in a downward slant to the chute. The end of the runway next to the doorsill was supported by legs made of 2×4's reaching to the ground, and the other end rested on the lower lip of the grain chute or opening in the dock. The runway had wings running up the sides thereof to the car, and, as thus situated, was about 3 feet from the ground, and slanted down to the aforesaid opening. To prevent grain from falling through the crack between the upper end of the runway and the car doorsill or floor, a piece of burlap was tacked to the runway across its entire width, and about 6 inches below the upper end, and the strip of burlap ran from thence up to and over the "grain door" which was formed inside of the car door by placing boards on edge lengthwise of and against the side of the car, across the doorway, so as to keep the grain from falling out of the car door. Owing to the fact that grain in passing down the runway would also leak through a crack or cracks therein, defendant had also tacked some pieces of burlap on the floor thereof a little lower down than the upper piece just mentioned. One of these pieces was about midway down the runway.

Some time in the afternoon of February 16, 1920, plaintiff and a coworker, Joe Varner, were ordered to unload a car of millet seed, which had already been set opposite one of the chutes with the runway in position. The millet in the car was in sacks, and these were piled so closely against the inside or grain door that, at first, only Varner got inside the car, and handed the sacks over the edge of the grain door to plaintiff, who stood outside on the runway, and, as each sack was handed to him over the grain door, he cut the strings in the end and allowed the millet to flow down the runway between his legs, or to one side of him, into the chute. After doing the work in this way for some 20 minutes to an hour, enough of the sacks had been removed at the door to permit both men to get inside and work, and, as was usual, plaintiff started to get in the car by climbing over the grain door from where he stood on the runway. He put his left hand and left foot on the upper edge of the grain door, and attempted to climb or leap over it in this way, when the toe of his right foot caught in the burlap, and checked the movement of his body in mid-air, causing him to fall backward, to his injury. As he fell plaintiff saw that his toe had caught, and was still sticking, in a hole in the aforesaid last-mentioned piece of burlap tacked on the bottom of the runway about midway down the same.

It is earnestly contended that plaintiff is not entitled to recover, and that the demurrer to the evidence should have been sustained. This insistence rests upon various grounds, thereby calling for a statement thereof, and more or less discussion of them. Several of them, however, may be disposed of in a preliminary and general way. For example, we cannot say that, conclusively, plaintiff's foot did not catch in a hole in the burlap, nor that the fall could not have occurred or have been caused that way. Neither can we say that plaintiff was negligent as a matter of law in attempting to get over the grain door and into the car in the way he did. The evidence is that the other men got into the car the way he did; that such was the way he had seen them get in; that he had always done it that way, in the presence of the foreman, and had never been told to do it differently. Plaintiff had worked for defendant about three months, performing the various duties of a common laborer, and had drawn grain from the weighing machines. He had unloaded, or assisted in unloading, some cars before, though the evidence does not show how many. Plaintiff did not say he had unloaded only one car, and therefore had never had occasion to get into but one before. What he said was that he had unloaded only one car of millet before. It is true plaintiff's statements as to how he got into the car vary in some slight particulars, but these are not vital, and may be explained by the fact that he is an unlearned man, not trained in making nice distinctions, for he is unable to read and write, except his own name. For instance, in one place he seems to say that, after having placed his left hand and left foot on the upper edge of the grain door, he had both hands on the door as he started to "boost" himself up into the car, while in another place he says he had his right hand on the door, or the sack, "or something," yet finally it appears that what he intended to say was that he placed his left hand and left foot on the upper edge of the grain door while his right foot was on the middle of the runway and his right hand was on his right knee, and from this position "kind of boosted myself—that is, kind of crow-hopped—" up into the car. The method, whichever it was, of getting into the car did not cause his fall. It was the catching of his toe in the hole, thus stopping his body unsupported in mid-air, that caused him to fall backwards; and it is by no means certain that he would nu: have fallen had he been holding the upper edge of the grain door with both hands, is, in one or two places of his cross-examination, he seems to say he had. Nor can we say it would have been impossible to leap or "boost" himself over the grain door into the car in the way ho finally says he did. The evidence is such that the jury could well find that the grain door was not three or four feet high at the time he attempted to leap over it, but only from 16 to 19 inches high. The evidence is that one grain door is made by nailing two boards, 8 to 12 inches wide, edge to edge, and, while it may be a little uncertain from plaintiff's testimony in one place whether he means two grain doors (i. e., four boards in all) or whether only two boards (1. e., one grain door) were in place at the time, yet plaintiff clearly speaks of there being only two boards "nailed across there that we hadn't taken down." And, when called on to explain whether he meant there were in place two grain doors of two boards each, making four boards in all, he testified positively that there were only two boards. It is unquestioned that the usual and the only way to get into the car was over the runway and the grain door, and not otherwise. Witnesses on both sides say that, including defendant's foreman. There is in the evidence no warrant whatever for saying that plaintiff, conclusively, adopted the unsafe of two ways of getting into the car.

But the contentions most seriously urged against the ruling on the demurrer, (stating them in our own language) seem to be these:

(1) That plaintiff, having charged defendant with knowledge of a defect long enough before the injury to have repaired it in time, has failed to show any such prior knowledge, or, that the defect existed long enough for defendant, by ordinary care, to have learned of it and remedied it, wholly failed to prove such prior knowledge.

(2) That, even if the hole was there prior to plaintiff's fall, the presence of the hole in the burlap did not impair the usefulness of the chute, nor make it an unsafe, defective or dangerous appliance.

(3) That the bole in the burlap was not such a defect as that defendant could reasonably anticipate that the same would cause an accident.

The petition, after setting up the relation, of master and servant between the parties, and the situation with reference to the dock, cars, and receiving chute, further set up the maintenance and use of the runway, from the cars to the chute, covered with burlap, and that, in the performance of plaintiff's duties, "it was necessary for him to walk upon and over said runway"; that the covering or burlap on the runway was at the time "old, worn, ragged, out of place, had holes therein, and was dangerous, defective, and not reasonably safe to be walked upon or across; and he states that, in attempting to use and cross over same, as aforesaid, his foot caught therein, and in one of said rough and defective places, whereby he was caused to stumble, to lose his balance, and to fall against hard surfaces, and to sustain grievous and permanent injuries," etc.; that defendant knew,...