Winkleblack v. Great Western Mfg. Co.

• Decision Date: 03 April 1916
• Docket Number: No. 11892.,11892.
• Citation: 187 S.W. 95
• Parties: WINKLEBLACK v. GREAT WESTERN MFG. CO.
• Court: Missouri Court of Appeals

187 S.W. 95

WINKLEBLACK v. GREAT WESTERN MFG. CO.

No. 11892.

Kansas City Court of Appeals. Missouri.

April 3, 1916.

Rehearing Denied June 12, 1916.

Appeal from Circuit Court, Jackson County; I. N. Watson, Special Judge.

"Not to be officially published."

Action by James W. Winkleblack against the Great Western Manufacturing Company and the Newby Transfer & Storage Company. Dismissed as to the Transfer Company, and judgment for plaintiff against the Great Western Manufacturing Company, and it appeals. Affirmed on condition that plaintiff file a remittitur of $2,000; otherwise, reversed, and cause remanded.

Wm. W. Hooper, of Leavenworth, Kan., and Griffin & Orr, of Kansas City, for appellant. T. J. Madden and E. C. Whitesitt, both of Kansas City, for respondent.

JOHNSON, J.

Plaintiff, a teamster, sued the Newby Transfer & Storage Company and the Great Western Manufacturing Company to recover damages for personal injuries he alleged were caused by negligence of the defendants, his employers, in failing to exercise reasonable care to furnish him a reasonably safe place in which to work and with reasonably safe appliances. The answer of each defendant was a general denial and pleas of assumed risk and contributory negligence. At the close of plaintiff's evidence, the court sustained a peremptory instruction asked by the transfer company, but overruled a similar instruction asked by the Great Western Company, and thereafter the trial proceeded against the latter defendant alone. The verdict and judgment were for plaintiff in the sum of $5,000, and defendant appealed.

Plaintiff had been employed by the transfer company many years as a teamster, and for a long time had been assigned to the duty of driving a team and wagon which his employer used exclusively for hauling freight for the Great Western Company. The transfer company charged the Great Western Company a stipulated price for such service and employed and paid plaintiff, who therefore was the servant of the transfer company. Plaintiff testified that as such teamster his duty should have been to receive loads to be hauled at his wagon, but that his employer directed him to obey the orders of the Great Western Company, and that he had been required frequently by the foreman or shipping clerk of the latter company to assist in trucking heavy articles from its warehouse to the wagon. There was a loading dock at the rear of the warehouse the platform of which practically was on a level with the floor, and the petition alleges that the boards of the platform and floor at and near the doorway were decayed and in a dangerous condition.

On the occasion in question, plaintiff, the shipping clerk, and another employé of the Great Western Company, drove to the warehouse to load some iron shafting into the wagon for transportation and delivery to a customer. Arriving at the warehouse, they loaded a shaft 16 feet long and weighing about 350 pounds lengthwise on a two-wheel truck, and plaintiff, moving backward, proceeded to pull the truck and load from inside the warehouse through the doorway onto the dock and thence to the wagon. The surface of the floor and dock was rough and somewhat uneven, and he was compelled to exercise care to keep the shaft from rolling off the truck. While thus employed, one of the wheels dropped into a hole near the doorway, the truck shifted, and the shaft rolled off and fell on his foot, severely and permanently injuring it. Plaintiff testified:

"I had to pull kind of hard on account of the floor being kind of rough and on account of going backwards and pulling. I got to the door just by the doorway, the dock was rough, and the truck frame did jiggle and turn the shafting and make it uneven on the dock, and in trying to right it I went into the hole, as I came out into the door. I didn't see the hole. I was going backward and I didn't see the hole. The truck in coming out and running sideways run into that hole and started to turn, and turned the truck over, and the shafting fell on my foot. That was right in the doorway. That was a hole broken through there at the time by the truck falling into that worn place. It was rotten, and the truck broke the hole — the truck wheel. The wheel did not go clean down but it broke the place through so the wheel stuck in the place and it turned the truck up."

It appears from the evidence of plaintiff that the hole was in the dock platform at the doorway and not in the floor of the building; that plaintiff knew the floor and platform were in a defective condition and had complained about them to the shipping clerk, but did not know they were so defective as to threaten him with imminent danger; and that in moving the truck he obeyed the order of the shipping clerk, who was the foreman in charge of the work of loading the shafting.

The evidence of defendant contradicts that of plaintiff in many vital particulars. The shipping clerk described the floor and dock as being sound but rough along the course followed by the truck, though there were some rotten places at the sides which were some distance from the course through the doorway. There was a knot hole just outside the doorway, but it was not large enough to have disturbed the equilibrium of the truck if a wheel passed over it. He denied that he ordered plaintiff to move the truck, and says that, after he and his helper had placed the shaft on the truck and had turned to some other task, plaintiff voluntarily undertook to pull the truck out to the wagon. Defendant's evidence tends to show that, under the terms of its arrangement with the transfer company, plaintiff was to receive all loads at the wagon, was to do no work in the warehouse, had never been ordered to do such work, and that the shipping clerk was not a foreman nor authorized to enlist plaintiff in the service of defendant.

The verdict for plaintiff settled all controverted issues of fact in his favor and, finding substantial evidentiary support for his contention that he was placed by his employer under the control and direction of defendant, under a general order to do whatever defendant ordered him to do, and that defendant, in turn, had placed him under the direct control of the shipping clerk, who followed the practice of having him assist in the work of loading freight in the warehouse and trucking it to the wagon, we must assume, for the purposes of the demurrer to the evidence, that such was the nature of his employment and of the duties his master...