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George and Union Allen v. Larabee Mills Flour (2d) W. Company, S. Appellants. One, 24, 1931. Division June *2 G. L. Zwiolc and 0. E. appellant Shultz for Larabee Flour Mills Corporation. <((cid:127)'

My on, respondent. ft Parkinson Norris damages personal FERGUSON, in- C. This is an action *3 juries alleged by plaintiff by employed to have been sustained while Corporation. Ter- Flour The Union the defendant Larabee Mills Railway joined Company, corporation, minal was as defendant. petition alleges plaintiff employed The that was the defendant injured Corporation, Mills he was on the Larabee Flour and that day engaged January operating “in work of while the 18th unloading which had delivered shovel a car of wheat” been and load Corporation milling plant its Larabee Flour Mills defendant size, city Joseph, petition describes the of St. Missouri. the operating shovel” “power the used and manner mechanism Negligence charged unloading from railroad cars. of wheat the unloading said plaintiff was as “That car follows: Flour coopered by Larabee Mills the defendant been wheat Railway Company, Union Terminal Corporation, and defendant carelessly them, arrangement and defendants said between and coopered in such a manner to be negligently said car caused and upon purpose of floor an obstruction a extended covering car, so the same in the floor of said a hole distance, it and rendered car a considerable bove the surface oper operator into car an was loaded certain that when wheat of said shovel injured reason likely be ating the shovel would coop obstruction; the defendants with said coming in contact wheat, which with loaded knowing to be well that was said car ered Corporation’s Mills Flour Larabee at the defendant was to be unloaded its Railway Company did Terminal Union mill, and the defendant Mills Flour Larabee defendant coopering car for the said part of coopered said negligently companies said Corporation, both of and same, negligently caused and inspect the negligently failed and car same, in the and loaded wheat be furnished same to car to be same, and caused said in the wheat negligently transported unloading dock of the defendant Larabee Flour Corporation, negligently permitted Mills plain caused and power-shovel tiff unloading to use as hereinabove forth, set ear; of said wheat from said said ear in dangerous manner created inherently said a hidden and instru mentality appliance place and work and of work for employees engaged in work unloading petition said wheat.” The then alleges day that on the aforesaid plaintiff “the while in the ex care, engaged unloading ercise of in the work of said holding using said pow7er-operated shovel, and shovel said sinking the same wheat, into the the same came contact obstruction car, thereby said the bottom then said jerked great plaintiff threw and force violence.” The injuries plaintiff damages claims to have set out received are $50,000. in the sum of asked separate

Defendants filed answers. plaintiff’s At the conclusion of Ter evidence the defendant Union Railway Company’s plaintiff’s minal demurrer to w7assus evidence whereupon involuntary took an tained, said nonsuit Union Company, defendant move with leave to to set the same aside. plaintiff’s

The demurrer evidence offered the defendant all Flour Mills ivas At the Larabee overruled. close of in the Larabee Flour Cor the evidence case the defendant Mills poration which the evidence, offered demurrer to the court over thereupon jury ruled, the case was submitted to the as to that finding jury issues defendant alone. The returned a verdict sustained, motion a new7trial Plaintiff’s the defendant. *4 being assigned error com grounds by the court therefor was the 5, 8, numbered 9 and giving in instructions mitted defendants granting trial, a new7 de of in action the court From the Corporation appealed. Mills Larabee Flour fendant by Corporation Flour Mills employed the Larabee Plaintiff was injury is which he “scooper” January 14, on and the as a January 18, days later on occurred four alleged have sustained to ” years’ in kind of experience had had “five or six 1924. He w7ith ivheat Mills had stored The Larabee Flour w7ork. ware Company, for which held Joseph Elevator St. Public the Company an ivas Public Elevator receipts. Joseph The St. house whatsoever with the having no connection corporation, independent public warehouse duly to do a licensed corporation, is milling and milling w7ouldmake corporation time the from business. As time company its with the elevator stored from its wheat withdrawals would call the ele charge part of the business of that employee specified that a and direct by and order telephone company vator per day number of during ears wheat out of definite whereupon period time, company of the elevator would make re quest Union Terminal Company supplied the to be day. the number of ears to be loaded each The Terminal Company supplying carrier furnishing a common facilities for switch transporting ing, moving freight and railroad cars for railroads Joseph, and industries in and St. near Missouri. When cars to be grain transporting used from were ordered the Terminal Com proceed pany, company cooper is, would the cars—that in grain “stop doors, leaks,” “put shape loading” stall the ears in leaking they papered “in case a car was or or boarded it whatever necessary prevent leakage prevent grain coming out — they put something car” or “if there is a leak in the floor of the leakage.” things stop papers, lath, various on the floor to on, Company would then deliver the cars the Elevator Terminal The loading, “OK” generally the cars were marked Company for cooper. by Company’s with chalk Neither corporation any milling company nor the elevator had facilities loading by coopering of cars. The was done nor undertook the company of The assistant foreman the elevator company. elevator loading grain follows: “The is run into method describes the spoil! long spout car; through big, bin, into the scale then The goes ways, kind of horn both branches out.” into the car nothing grain do with either owners of the they then trans loading cars were loaded were the car. When the mill Company unloading of the by dock ported the Terminal milling by charges being paid cor ing therefor corporation, the by corporation grain milling from the cars removed the poration. The propelled large scoop shovel which was automatic means guided scoop placed power. shovel or electric drawn charge operated Oft times it. who was “scooper” with obstructions come in contact scoop strike or or shovel would boarding nailed to car, or bolt or as a cleat floor of the such operator grain, times leakage and at such prevent floor to try to “slide” of the shovel scoop end would raise one 1924, plaintiff day January, 18th On the obstruction. it over the charge corporation scooper in milling as a working for defendant unloading engaged in the a car power shovels and its of one of dock, having unloading been which stood defendant’s wheat milling from the elevator com corporation consigned to the unloading the Terminal transported pany *5 working was was one several plaintiff Company. in which The ear consigned loaded, ordered, coopered, cars, had been all of which scoop shovel The. described. manner we have transported in the an obstruction in contact plaintiff operating came was which ear, says thereby “twisted, the floor of plaintiff the that was he jerked great thrown and injured.” foree and violence and was using The plaintiff and other workmen, scoops, hand then removed the wheat obstruction, plain covered and concealed the tiff they describes the being obstruction which as box discovered pine “about twelve square, lumber, fourteen inches made of open toe-nailed to the door box with the side of down the and stand ing eight high inches six or from the floor of the car.” was The box so securely plaintiff compelled nailed that was to use an iron bar pry evidently Tt. it. loose. been so the (‘over a hole in reported as to floor. Plaintiff foreman the scoop” “was hurt report that he and a of the accident' company’s testified, plaintiff made to the office. The foreman plaintiff deny did “he conversation, said, not that at time anything thought think he was didn’t hurt to amount to it was — just sprain go or kind bruise didn’t want to to a doctor.” immediately at he Plaintiff testified the trial that suffered severe and sharp pain re groin during in the back and which continued day night. plaintiff reported of the for However, mainder and the day regularly work on the after the accident and worked there next following scooper corporation after until as a for the Larabee October, accident, nine when he went to work about months after binning corporation at until where he worked wheat an elevator July, again In he went to work the Larabee May, scooper continued that work until October corporation as a being years time, two and nine 26, 1926, when first physi accident, consulted and was treated after the he months suffering he physicians him testified treated cian. The who alLeged by'the arthritis was not caused and that the from arthritis opinion, history, as gave based but it as their trauma, exciting may cause trauma have been by plaintiff, that the stated says alleged in followed acute condition which severity increasing frequency until jury continued with sustained the The evidence physician for treatment. he went to floor obstruction on the petition as to the plaintiff’s allegations of have the obstruction could not it is car, and conceded wheat. loaded with after the car been discovered instructions, given certain of its appellant contends While trial, erroneous, correct declared, are new grounds for a contention, here, error, one and the stressed its first and free been should have the evidence is its demurrer therefore, primary if this follows sustained. immaterial correct appellant be contention wrong. right given were instructions whether developed testimony by the briefly facts stated We have *6 232

under facts readily appears these we think it of the status merely consignee. the Larabee Mills that of a nothing coopering selection, to with loacl do earg jn t}le -¡ng grain 0f which transported unloading milling corporation its dock. The had no authority employees or control over of either the Company Company or the Elevator and cannot there responsible acts, negligent any. be if Ter fore held their The Company duty milling corporation minal a its owed em might required performance in of duties ployees, who their unloading cars, to in, upon supply in to work and about the cars reasonably purpose safe, fit for the for which which were and suitable they cooper properly weré to be such intended used to cars. [Roddy Company, 234, W. 1112; 104 Mo. 15 S. v. Smith 273 Company (Mo. App.), Motor W. v. Anderson Service S. duty employees a in l. c. of common carrier relation to 744.] unloading consignee in railroad cars is discussed on the facts 252 Company, v. Mo. Applegate of case in Railroad W. S. imposed by upon duty law to fur comply

To with the master reasonably with which work appliances the servant safe to nish vdth reasonably place re work, a in a master is not safe to therein, quired inspected, for defects be inspect to or cause to be supplied by a carrier for the loaded, same ears common are fore consignee him as a because his servants transportation freight to upon required go in Where unloading will be to them. the ears Company places freight a car loaded delivers and Railroad consignee right pre has a consignee, such to be unloaded contrary unless proper condition car is in and safe sume inspection, particular or technical “and appears without knowledge circum facts or some obvious defects absence him constructively brought home” which would actually or stances inquiry lead ordinarily prudent person such as to put an “on contrary condition,” consignee is not liable for knowledge working in, such injuries resulting on, -while or about to his servant unloading condition thereof. reason of some defective it, Wis. In instant Co., 149 [Gager 154.] v. Lumber Stolle-Brandt dangerous the defective it is case conceded entirely floor covering a hole vras purpose the car loaded with wheat as was when the car was hidden concealed and unloading. Such plant to defendant’s when delivered no existed circumstances not obvious and condition defective inquiry. upon the master put must exercise the master rule that Respondent relies appliances and servant safe care to furnish reasonable reasonably place rule, however, safe work. oil the “This is based use, possession, appliances control the master of used and premises performed, where the servant’s work is not ordinarily applicable are appliances premises to cases where such person.” [Gillespie’s controlled How- owned third Exrs. v. *7 ard 294 (Ky.), S. W. applicable The rule invoked is not to 154.] property Company this car of case for the was the the Terminal coopered, supplied, other carrier and it was con-' some moved and solely corpo- by Company milling while the trolled merely consignee ration was of the wheat loaded in car. except no control no use of to un-

exercised over and made page Law, 585, said, general 18 Ruling load it. In it is “As a Case employer employees to his peculiar rule the duties that an owes only which premises instrumentalities over relate might complete employer Otherwise lias control and dominion. he responsible negligence persons of ref- be made for the third premises seen, he never and about the condition of erence perhaps know, nothing.” knew, he could injuries Respondent master is held liable for cites cases where the using his while a defective car furnished received servant are: railway loading. of The cases cited company purpose for App. 287; Peter Hinman, v. Ill. 119 New Washed Coal Co. Ohio 50; Spaulding v. Co., Pac. Railroad 88 Pac. C. McCallion v. Mo. Co., 1134; 587, 34 Flynt N. 159 N. E. D’Almeida W. Mass. Granite 209 Co., Co., v. v. Boott Mills & D’Almeida Boston Maine Railroad bearing However, analysis E. an 95 N. of the cases Mass. question between discussion reveals clear distinction under consignee merely a is here, a case such as we have where the master loaded), being (or (or consignor) and the car is unloaded and the cites, temporary respondent wherein the master has taken cases business, making operation his charge car, it in the use of business appliances or instruments his making one of the of it becoming tempore own, thereby adopt it as his pro so as if he duty to servant as the same servant the owner under any case which holds owner. have not found were the We master, consignee freight to him being merely delivered unloading same, to his purpose of is liable railroad car sole ear. injury condition caused some defective servant Upon is liable. master not rule is that the such of facts the state 1043; (Pa.), v. Standard Carnegie 27 Atl. Jones v. Bros. [McMullen (Ky.), 20; Gillespie’s (Ark.), Exrs. v. Howard 223 Oil S. W. Co. v. 862; O’Malley 48 Atl. Hughes (Pa.), 154; Leonard S. W. v. Such York, 96 N. E. (Mass.), 668.] N. H. & H. Railroad New rule, not, “that master general holding applies follows defects by reason of injuries servant general, in to his liable in appliances places for work which are by, furnished and are under the of, person.” control a third C. J. and cases [39 there cited.] In his respondent brief in argues effect that his shows evidence the existence of a local custom'in Joseph St. grain the owner of stored ordering elevators there in shipped elevator, from the *nspec't cars into grain which the is to be be same loaded, are or cause them to be inspected,

fore milling this instance corporation failed to make such inspection or cause it testimony to made. The tending to show such a local custom principally consists of a of plaintiff statement question, answer to the any "Is there (St. Joseph) custom here inspection about prevent of cars to being obstructions in the cars likely injure sir, employees in unloading!” Answer: "Yes, inspecting custom ears, owning grain the man if he orders it loaded, inspect must those cars or somebody cause else to.” Plain testimony tiff’s appears to be more in the nature statement grain *8 opinion what ordering the owner of shipped same ought from an elevator to do under such circumstances than evi dence of theory the existence of local custom. that milling corporation is liable because duty it violated a created a local thereby taking custom operation the case from under the general rule of law hereinbefore stated and which would otherwise presented apply is for the first time in this court. Such custom pleaded, was not theory plaintiff’s case was not tried on such theory jury. instructions did not submit Plaintiff’s testimony as to a long local custom does not show alleged how prior plaintiff’s alleged injury; pre custom had existed plaintiff injured; plaintiff vailed at the time that either or milling corporation knowledge prior had of such custom or at time; plaintiff or cor milling relied thereon that the poration prior thereto peti followed observed such custom. The charge part duty tion arising does on the not the master out of a local custom and its violation to make the master liable. no resting charges duty upon milling where that there was a corpo inspected loading inspect point ration to cars to or cause be same of an and before were loaded virtue established local cus 462, 222 Bixby, 282 Mo. tom. In Kirkland v. S. W. this court- says: duty custom, usage, "If from a arises the custom usage pleaded, if pleaded not no should evidence usage admissible,” pleaded, custom is local should be if and "the usage such local is relied to take the case out the usual rules usage respondent of law.” The custom or local refers to general taking his brief as this case out of and under the rules pleaded proven. applicable neither nor law thereto was For the appellant’s reasons stated demurrer to the evidence should have been jury sustained and the should have been directed to find appellant. judgment, Therefore the and order of trial court granting a new trial is reversed and the cause is remanded with directions judgment court nisi enter for the defend- ant, A Corporation, Carabee Flour lilis Sturgis the verdict.

Hyde, GO., concur. PER. foregoing CURIAR Ferguson, opinion . The C., a

dopted opinion .judges of the court. All of the concur. Andy Schwab, Appellant. (2d) S. W. 635. Lillian Clerk v. One,

Division June