Zipp v. Gasen's Drug Stores, Inc.

• Decision Date: 12 January 1970
• Docket Number: No. 54318,No. 1,54318,1
• Citation: 449 S.W.2d 612
• Parties: Leo J. ZIPP, Plaintiff-Respondent, v. GASEN'S DRUG STORES, INC., Defendant-Appellant
• Court: Missouri Supreme Court

Page 612

449 S.W.2d 612

Leo J. ZIPP, Plaintiff-Respondent, v. GASEN'S DRUG STORES, INC., Defendant-Appellant.

No. 54318.

Supreme Court of Missouri, Division No. 1.

Jan. 12, 1970.

Motion for Rehearing or to Transfer to Court En Banc Denied

Feb. 9, 1970.

Thurman, Nixon, Smith & Howald, Robert Lee Smith, Hillsboro, for plaintiff-respondent.

Gerald D. Morris, St. Louis, for appellant.

WELBORN, Commissioner.

Appeal by defendant-appellant Gasen's Drug Stores, Inc., from judgment on jury verdict in favor of plaintiff-respondent Leo J. Zipp for $42,800 for personal injuries.

This action arose out of injuries sustained by Zipp while he and others were attempting to move a safe into the Gasen Drug Store at Festus, Missouri, on the afternoon of March 30, 1965. Zipp was a truck driver employed by C.E.S. Truck Lines. He drove the C.E.S. truck in which the crated safe had been loaded from the terminal to the Gasen store. The safe was removed from the truck by an automobile company wrecker and placed on the north edge of the sidewalk in front of the store.

The safe was made of metal. It was 26 inches square and 63 inches high. It weighed 2,970 pounds. The upper portion of the safe had 4 1/2 walls. It was heavier than the lower part, which had 3 1/2 walls.

Although Gasen, in answer to plaintiff's request for admissions, categorically denied that its employees were to assist or did assist in any manner in moving the safe into the store, the evidence at the trial showed clearly that Gasen's employees were to assist in getting the safe into the store and no point is made here that the Gasen employee, Henry Rabus, whom plaintiff charged with the specific act of negligence causing his injury was not, at that time, acting within the scope of his employment by Gasen.

According to Zipp, he and another C.E.S. employee, Rudy Whitner, assisted by Gasen's employees, uncrated the safe and attempted to move it inside the store by rolling it on three iron pipes. However, when they reached the door, they found that the bottom of the crate, which had been left under the safe, was too wide to go through the doorway. The safe was rolled back some six to eight feet to the edge of the sidewalk.

Whitner then went to the C.E.S. terminal and got a hydraulic jack or dolly. This device was basically two metal arms, each seven inches wide and several feet in length, mounted on rollers. The outer edges of the arms were twenty-six inches apart, exactly the width of the safe. A hydraulic device would raise the arms from their lowest level of approximately three inches above the floor or ground on which the rollers rested to a height of about six inches. The hydraulic device at the rear of the dolly was operated by a handle which also served as a steering device.

Using a crowbar, the safe was raised and blocks placed under it and the bottom of the crate removed. Then the dolly was run under the safe and the weight of the safe was transferred from the blocks to the dolly arms. The outside edges of the safe were parallel with the edges of the dolly arms. However, the portion of the safe at the front end of the dolly extended somewhat over the end of the dolly arms so that the safe could be placed against the wall when it got to its location inside the store.

The men tried to shake the safe to be sure that it was securely on the dolly. Satisfied that it was, they began pushing the dolly and its load across the sidewalk to the door. Whitner was at the handle or northern end of the dolly, farthest from the store. Rabus was on the northeast corner of the safe, pushing it, with his right hand at the north side of the safe and his shoulder against the east side. Zipp was on the southeast corner, walking backward with his hand on the safe 'to steady it.'

When they got the safe about 1 1/2 feet from the door, Zipp, looking over his shoulder, saw that two girls wanted to come out the door. He told his coworkers 'either hold it or wait a minute or something to that effect.' The movement of the dolly and its load stopped.

Then, according to Zipp:

'Well, then, I still had my hand on the safe, see, I had glanced back to see if it was clear that we could come on through. While I was looking back the one girl did come out through there and the other one was out of my line of vision and I don't know whether she went through at that time or not. I felt the safe move and I glanced up and Mr. Rabus had his hand and shoulder up learning into the safe and that's when it fell, the safe.

'* * * (W)hen I looked back I felt the safe move, I felt the safe move and that is when I glanced back to see what was going on and that's when I seen Mr. Rabus with his right hand--I could see all of the left part of his body, with his shoulder hidden behind this safe. He had his arm up here and his other hand here (indicating) and when I looked up he had this foot up to the safe and his body was in a leaning position towards the safe.'

Zipp testified that the east side of the safe, on which Rabus was pushing came forward in a short turn, rotating clockwise.

When the safe fell, it struck Zipp's left arm and caught the arm between the safe and the door jamb which was in the center of the two-door store entrance. The nature and extent of injury will be discussed in connection with appellant's claim that the verdict is excessive.

In view of the points raised on this appeal, we need not detail defendant's evidence, which, in effect, was that Rabus was not helping to move the safe when it fell. According to Rabus, Whitner and Zipp were trying to get the safe on the dolly and the safe fell toward the door while Zipp was squatting alongside the safe, adjusting the blocks under it. Just as two girls got through the door, it started to fall. Zipp tried to grab the safe, but it continued to fall and caught his arm between the safe and the door jamb.

Lorna Carter, one of the two girls who came out the door just before the safe fell, was called as a witness by the defendant. She related that she had seen the safe moved to the door on the dolly and that Zipp was backing up to the door as the safe was moved toward the door.

Plaintiff's cause of action was submitted on the theory that Rabus 'pushed the safe without warning with sufficient force' to cause it to fall. Appellant contends that there was no evidence upon which such a charge of negligence might be based because there was no evidence that Rabus knew or in the exercise of ordinary care should have known that the safe would fall if pushed in the manner described by plaintiff.

Appellant's argument on this score is premised on the testimony of Zipp that, after the safe was squarely on the dolly, he, Whitner and Rabus all tried to 'wiggle' the safe around and found it 'safe and solid.' Appellant also points to Zipp's testimony that the safe did not shake or wobble as it was moved toward the door and prior to the time that Zipp called for a halt. According to appellant, Zipp's own testimony showed that he was unaware of any danger of the safe's falling as it was moved and Rabus is chargeable with no superior knowledge of any possible danger.

There is no doubt, as appellant argues, that knowledge of the danger to another that an act involves is basic to liability for negligence. 'A man cannot be held responsible on the theory of negligence for an injury from an act or omission on his part unless it appears that he had knowledge or reasonably was chargeable with knowledge that the act or omission involved danger to another.' 38 Am.Jur., Negligence, § 23, p. 665. The cases of Kettler v. Hampton, Mo.Sup., 365 S.W.2d 518, 522(3); Taylor v. Dale-Freeman Corporation, Mo.Sup., 389 S.W.2d 57, 60(1--3); and Komeshak v. Missouri Petroleum Products Co., Mo.App., 314 S.W.2d 263, 270(5), cited by appellant, all involved application of this unquestionable proposition. However, appellant candidly acknowledges that its cited cases did not present the facts here involved. The problem is whether, on the facts of this particular case, there was evidence from which the jury might have found the essential element of Rabus's knowledge of the consequences of his acts, charged as negligence.

In considering this question, the evidence must be viewed in the light most favorable to the plaintiff, who is entitled to the benefit of all favorable inferences which might properly be drawn by the jury from such evidence. Kettler v. Hampton, Mo.Sup., 365 S.W.2d 518, 521(1). Viewing the evidence in such light, we must determine whether the jury could properly have found 'knowledge, actual or constructive, on the part of the defendant that there is some probability of injury sufficiently serious that the ordinary person would take precautions to avoid it. Zuber v. Clarkson Construction Co., 363 Mo. 352, 251 S.W.2d 52, loc. cit. 55, and cases there cited. This does not require a balancing of 'probabilities. " Price v. Seidler, Mo.Sup., 408 S.W.2d 815, 822(12, 13).

A view of the evidence favorable to plaintiff would support the finding that the top-heavy safe with a metal bottom had been placed on the metal arms of the dolly; that, although the sides of the safe were square with the sides of the dolly arm, the fear of the safe overhung the front end of the dolly arms. Rabus was aware that the safe was top-heavy. Although the safe could not be 'shaken' as it rested on the dolly, the moving of the safe on the dolly required the assistance of Zipp to 'steady' the safe as it moved. He did so by proceeding ahead of the safe, thereby applying a force to counter the force applied by Rabus with his arm and shoulder to the corner of the safe opposite Zipp. While the dolly was moving, the movement of the dolly coupled with the 'steadying' effort of Zipp countered the force applied by Rabus and the safe moved without incident across the sidewalk. The jury could have found that Rabus knew or should have known that the forward movement of the dolly and the steadying efforts of...