Zitzmann v. Glueck Box Co.

• Decision Date: 09 October 1925
• Docket Number: No. 25039.,25039.
• Parties: ZITZMANN v. GLUECK BOX CO.
• Court: Missouri Supreme Court

276 S.W. 23

ZITZMANN v. GLUECK BOX CO.

No. 25039.

Supreme Court of Missouri, Division No. 1.

October 9, 1925.

Appeal from St. Louis Circuit Court; Anthony F. Ittner, Judge.

Action by Frank Zitzmann against the Glueck Box Company. Judgment for defendant, and plaintiff appeals. Affirmed.

John Neu, Jr., and Earl M. Pirkey, both of St. Louis, for appellant.

Holland, Rutledge & Lashly, of St. Louis, for respondent.

LINDSAY, C.

This is a suit for personal injuries. Plaintiff alleged that he was injured in the service of defendant while loading, upon a wagon, a box which contained loose boards, some of which fell out as he was handling the box and struck his left foot. The defendant was engaged in the city of St. Louis in the business of buying from manufacturers, and others, wooden boxes from which merchandise had been removed. Such boxes were repaired or restored by defendant and resold.

Plaintiff was a teamster who gathered up boxes from the various firms with which defendant dealt, loaded them upon a wagon, and unloaded them at defendant's place of business. Ordinarily, the boards which had been taken off of these boxes, in removing the goods from them, were put back loose in the box. The boxes varied in size, and defendant desired for convenience and time saving that the loose boards going with each box should not become commingled with the boards from other boxes when they were unloaded.

The negligence charged was that defendant required plaintiff to load and unload the boxes without first taking out the loose boards, which it was charged was not reasonably safe, and which, as defendant knew, or by the exercise of ordinary care would have known, made the work unsafe.

Damages were asked in the sum of $10,000. There was a verdict in favor of defendant. The answer was a general denial and a plea of contributory negligence. The issue of fact most in controversy was whether plaintiff received any serious injury at all. The plaintiff admitted that, for a long time previous to the injury alleged, he had trouble with his feet, and in walking limped upon both feet, and that he had done so for 16 years, but attributed that trouble to corns upon his feet. The errors assigned are the giving of certain instructions for defendant and exclusion of certain evidence offered by plaintiff. Denying that any error was committed in those particulars, counsel for defendant earnestly insist that the verdict was for the right party and that under the evidence the plaintiff made out no case. The plaintiff had been engaged in that form of work, and for the defendant company, far most of the time during the period of 13 years. At the time in question another employee of defendant, named Foerster, was also engaged in hauling boxes, and had been for about a year and a half. At the time of plaintiff's injury, plaintiff was loading a wagon operated by himself and Foerster was present with a wagon for a like purpose. They were getting boxes from a platform at the wholesale store of Marx & Haas. Foerster was engaged in loading his wagon when plaintiff arrived. Plaintiff testified:

"He was loading his wagon, and came back and gave me a lift, and I had given him a lift. At the time I was injured, he was tying his load down. I was not helping him at the time of my injury, but he was there. He helped me with the box that I had trouble with from the sidewalk to the wagon. I was trying to raise it from the bed of the wagon upon another box that was lying in the wagon."

He further said:

"He never gave me a lift to get it on the wagon. He gave me a lift when I was in hard places, and I told him that I could do it now. Let him go on his own wagon so he could get home. I figured I could load them on the wagon without any help. It was a man's job then."

It appears from the plaintiff's testimony that the method of loading was that the first boxes loaded on the wagon were laid flat on the bid of the wagon. The boxes placed upon that tier were stood on end, and the boxes thus placed on end must be placed with their openings facing inward, on the wagon, so that the loose boards on the side would not fall out into the street. The boxes to be loaded on this occasion were not all of the same size, but most of them were large. Plaintiff said the box in question was about 8 feet long, and about 3x4 feet in depth and width, and that it weighed about 100 pounds. Plaintiff described what he did as follows:

"Foerster's wagon was about 12 feet from me. We were talking as we worked there; we always did. I noticed when I took hold of these boxes that the boards had been taken off and were inside. They put them in crossways, on a slant, in order to get them in there. Sometimes they are tight in there, and sometimes not. They are never nailed; they ought to. Many a time I have pushed down on the high ends of the lids inside to start it tighter in the box. I generally do that, and did that on this box I am talking about. I pushed the boards in to get them as tight as I could; did that on the ground and wagon both. I did that to make them stay, I thought they would stay, yes, but they fell out. When they fell out the box was on its angle; I was on the act of raising it to stand up. You see it was sitting up like this, flat. I had it up like this. I had it up under a box like this, but it was up in the air, and as I had it that way these things fell out. While I was in the act of upending the box on top of another box on the wagon, that is when the boards fell out. had the box up on top of the other box, though, first resting on the edge like this, and was trying to push it back and make it straight, and then the boards fell out. I was undertaking to straighten it on its ends so it would right up when they fell out. I was pushing it towards the front of the' wagon. The open sides were towards me, and the right of me. I had one hand on each side of the open spaces; that would leave the open space directly in front of me, on my right-hand side. I was going to put another box against that open space in order to hold that stuff in. The lid stayed during the time I raised it from the ground to the top of the wagon, but it fell out during the time I raised it from the bed of the wagon on top of the other box up in the air, while I was trying to get it in its place. The only way it could be done, get the box on a balance, and if you don't get it it falls out and falls on your head. I have had these boards fall out lots of times before. I knew there was some danger there, but I thought by being careful it might be avoided, and that is why I pushed the boards in the box before I undertook to load it; but, in spite of all this care, they fell out. The box itself stayed there. I released it and it fell right back in its place where it belonged. Then I started picking the boards up and sticking them between in the wagon and hopping around there on one leg. Two of the boards fell off in the street and three or four stayed on the wagon. I put these boards in the middle of the wagon, not in the box. If you take in a whole load of boxes with the lids all piled on the bottom of the wagon, one would have to pick out the lids, measure them carefully in order to get the lids that match the holes back again. Toe right way to do it in order to keep the lids together would be leaving the lids in the box. By picking them out it maces it that much easier on the lift and you save more time. Marx & Haas were accustomed to leave the lids in the boxes; it wouldn't be a complete box if we didn't have the lid."

Foerster, introduced by plaintiff, testified:

"I saw Mr. Zitzmann push the boards in there before he put this box up. I helped him load this box on the...