*1 SUPREME, OF MISSOURI,, COURT Busy Candy Hunter v. Bee Co. partition having-
The oral rea- contract for failed, keep the son and of defendant’s refusal its ternas, ordering' being-proper, action a court’s in sale it follows judgment or- that the nisi be affirmed. It is so should Ragland, All in concur; J., dered. the result. P. Appellant, HUNTER, MANUAL v. BUSY BEE CANDY
COMPANY. One, April 13, Division 1925. Removing
1. NEOrLIOrENCE: Safe Place: Obstruction: Assistance Others: Proximate the 'Cause. The master owes his servant reasonably duty place which, to furnish him a reason- and safe ably appliances which, work; when safe and suitable with and work, require the men work of such as to men do the nature ap- engaged category are in the classified same injuries pliances; charges where servant that were due his requested to the failure him work- of the master to furnish othеr appliances necessary work, question is men and to do injuries. such whether failure was the cause of 2. — n -: Moving Bequest Help: Subsequent Automobile: for Strain: engaged driving wagon Proximate Cause. Plaintiff was a loaded candy store, goods boxes of his master’s were to where the placed basement, by' up be in a means of elevator which came through conveniently place the sidewalk. To the boxes on necessary op- placed immediately it was that elevator be posite occupied space the elevator. When an automobile it that away, moving could, it usual to move driver alone it if he strength applied much his but if was too for he to the help, help usually for furnished. aOn cеrtain after- wagon'drew up store, noon, large his to the when he found a auto- space standing elevator, attempted in front of the mobile finding it, applied but not do so move alone to the manager, obstructing store who was inside the and did not see the size, know its other men to him automobile move goods placed was told that must testified in the base- given Thereupon no would be him. ment and he returned body against automobile, using braced it and all his strength slowly away. rolling succeeded The exertion caused brain, rupture rup- of a vessel in his a blood as a result of the body right paralyzed. Held, rup- side ture the OCTOBER TERM, ture of the blood vessel was result the master should anticipated, have foreseen or was not direct result of the helper appliances, master’s failure to furnish him or suitable but *2 its cause was the strain and overex'ertion and a miscon- ception strength, of*his own for which not the master is liable. injury voluntary The servant assumes risk of from violent strain and overexertion. Choosing Dangerous -: 3. -: Method. The servant cannot damages personal injuries dangerous recover for his if he chose the accomplishing method of the ultimate end of his work when he accomplished might by using same result a method. safe usual, unloading wagon, Where it was in which were one boxes, containing pounds place candy, each hundred five it opposite up through an elevator which came the sidewalk and then place basement, the boxes on elevator and lower into space opposite temporarily occupied by and the elevator was the. big automobile, driver, having and the discovered not that way alone, applied move the automobile of the out to his master for only given and was told that no would be him that and goods placed basement, thereupon, must be in the and after sitting wagon twenty-five minutes see if the owner of away, the automobile would come and take it he undertook to space, wagon might place out of the order that he his conveniently doing more unload and in strained so so rupture himself as overexerted to cause the of a blood vessel carrying brain, by when the small boxes a short distаnce in his placing upon escaped hands and them elevator he would have accomplished injury, work, the same ultimate end damages master, good recover from his cannot since as he had opportunity seeing danger was, as per: his master of what way, mitted to unload the his own and could have avoided by care, the exercise reasonable mere fact involved more the safe method trouble and labor did not ex- dangerous cuse his method. choice 1, Cyc. Servant, 1149; 1098, Master and Citations to Headnotes: 26 Oye. Cyc. ; 3, /1258, 1456. 26 26 .1442 Appeal City from St. George Louis Circuit Court.—Hon. n Judge. E. Mix, (cid:127) Affirmed. Suip. Mo.
307 —42. SUPREME, OF MISSOURI, COURT 658 Gandy v.
Hunter
appellant.
R.Wm.
Schneider
(1)
does not
The servant
assume risks
his em-
negligence.
ployment
the master
that are caused
’¡3
Ry.,
Trill
272 Mo.
K. C. So.
613;
Williams v.
v.
Prior,
Quarry
v. Union
Const.
572;
W.
Walsh
216 S.
only
r(2)
way a
can be
denied
S.
servant
W.
danger
recovery
or risks
the mas-
because of
created
by doing
negligence
at the behest
ter’s
great
obviously
danger
which is
so
master the
danger.
apparent
threaten immediate and
certain
question
jury
for the
whether
dan-
It
ger
becomes
then
imminent
obvious
the servant was
was so
contributory negligence
guilty
doing
the work.
Ry.
Light
Elec.
109;
Bowman v.
Patrum
ap-
161. But unless the
was so
W.
S'.
parent
reasonably prudent man
think the
no
*3
safely,
not
be barred
woik could
done
should
negligence.
ground
contributory
recovery
on the
Bow-
Light
Thorp v. Mo. Pac.
Co.,
161;
213
man v. Elec.
S. W.
Ry.
650;
Co.,
Mo.
v. Railroad
65 Mo.
Co., 89
Stoddard
(3)
Ry.,
is
Trill K.
572.
It
v.
C.
216 W.
514;
So.
S.
ordinary
pro-
duty
care
exercise
of the master
reasonably sufficient
to en-
his servants with
vide
safety themselves
able them to do
reasonable
requires
Meily
of them.
v. Rail-
which the master
Mfg.
197 Mo.
Co.,
215
Lavecke v.
567;
Mo.
Curtis
road,
App.
Trill
106;
Railroad
172 Mo.
273;
Co.,
Haviland v.
(4) Paralysis
Ry.,
fre-
v.
S.
572.
K. C.
216 W.
So.
quently
exertion and should
from violent
results'
implied
master whose order
been forseen
Bottling
safety
Fowler v.
to the servant.
assurance
Supp.
App.
St.
535;
Div.
161 N. Y.
175 N. Y.
Co.,
Meyer
705; W.
La
178 N.
Yeck
House,
Clair v.
Music
v. Dunsnier
604,;
Mich.
Mclnnes
v.
190
Park Davis Co.,
rel. Puhl-
ex
226;
C.
State
&
1
C.
Ltd., B. W.
Jackson,
liability
(5)
of a
30.
Minn.
Ct.,
Dist.
137
mann v.
(cid:127)
upon
depend
charged'with negligence
does
master
pru-
question
reasonable
the exercise
whether with
very
ought
in-
have foreseen
dence he .307]
OCTOBER
1924.
TERM,
Vol.
659
complained
jury
may
any-
of;
lie
but
be held liable for
thing
complete
aрpears
after the
to have
his,
probable consequence
been a
natural
act or
Light
omission.
Laclede Gas
"Washburn v.
213
Co.,
S.
Ry.
829;
Smith v.
257 S.
414;
Greer,
W.
"W.
Lean v.
Co.,
199 Mo.
Buckner
411;
v. Horse &
Lewis & Rice, Werner and Foristel, Mudd, respondent. Hesel <& for Habenicht (1) plaintiff The failure to furnish the assistance attempt remove the automobile not consti- does negligence part tute on the of the defendant. Haviland Léitper Mo; v. App. 172 Railroad, 109; Mo. v. 104 Grieb, Lively 173; Petrilli v. & Co., Swift S. 516; 260 W. v. IIampeen Ry. Pac. Railroad, 103; 225 v. N. Co., 189 W. Ry. 123; Hines v. 232 Cox, S. 373,; Co., W. Williams v. App. Sandy 207 Valley 111. 517; Tackitt, Railroad v.Co. Ky. Ry. Stenvog 167 756; Co., 199; v. 108 Minn. Worlds Haywood v. Railroad 99 Co., Ga. v. Railroad 283; (2) App. 38 Tex. Civ. 101. But even failure, negligent, plain- not, law, cause of injury. tiff’s State ex rel. v. 271 Mo. Ellison, 463; Wash- Light burn v. Gas 214 S. 181; W. Mo. State Rys. ex rel. v. Le Ellison, 463; Moos Mo. damages personal
SELLON, for in C. Suit juries alleged to have been sustained while employment. in defendant’s *4 petition allegations
The substantive the "are of day these: “Plaintiff on or the 9th that about of states years July, prior and for several thereto he was in employment engaged company, of the defendant in hauling candy by wagon horse,and means of from the factory city in defendant’s "of to Louis, Missouri, St. city; doing its various retail in that said stores said in frequently necessary push pull work it to became or out the way parked of the automobiles which had been at place plaintiff in street curb of the where was re- front SUPREME, 660' MISSOURI, OF COURT quired to Broad- the defendant’s candy unload the at way store; that it became to necessary when un- pull was plaintiff automobile out of the and way by to do so аble, by exercise of exertion reasonable assist- himself, request for plaintiff customary said of charge ance from in defendant’s manager the. a, who that store, send man to plaintiff; as day necessary, the 9th of July, 1920, plaintiff found to request, aforesaid, employment, the course of his charge and he did request, manager defendant’s move help plaintiff of said a man to store, to send plaintiff place automobile which where stood un- order to at said time required place wagon, had on his load the of which he then load candy required place; and was defendant to unload said by the to pro- that defendant’s failed refused said vide the a man to assist him ordered plaintiff with himself. plaintiff by to move said automobile required said with the comply Plaintiff thereupon proceeded 'the defendant’s order, and directions instructions required by foreman or whom he was said manager, defendant And while' said automobile obey. pushing rupture out he suffered way, directed, as he was direct result of the in his brain as a a blood vessel to do said required by being violent exertion occasioned as aforesaid. by. assistance, work himself without rupture result of said Plaintiff states that as a the_ right body side of his vessel of his brain the entire blood continued July has so since paralyzed became resultant said 1920. Plaintiff states and was and condition was caused paralytic by and negligence direct result carelessness First, provide In failing plaintiff dеfendant: him the work-in with another man do knew, or the defendant when injured, aforesaid, have known, ordinary the exercise of care require to do plaintiff it was and unsafe dangerous knew, and the defendant himself, said ordinary exercise of care could known? defendant danger, said and the was unaware *5 OCTOBER TERM, Candy Busy Hunter Co. Bee ordinary have knew, or in care the exercise could required move said that it at least two men known, safety. Plaintiff’s Second, automobile with reasonable injury paralytic directly said caused condition and was failing negligence in carelessness of the defendant and plaintiff rea- ordinary to sonably with exercise to furnish care appliances proper necessary so аnd and tools safety, he the said work could, reasonable do required by he and which do, was the defendant to provide injured, in that it failed aforesaid, was as plaintiff man lever sufficient either with a bar or provided plaintiff’s power, said and been if either had injury said avoided. Plaintiff’s Third, would have been directly injury paralytic caused was and condition negligence in order- the defendant carelessness and injured, plaintiff ing which he work, was do said reasonably way safe, that aforesaid, as required a lever bar it without either to do power which the defend- to assist him, sufficient man ordinary have care could ant or in the exercise of knew, way improper dangerous, unsafe and known, was likely require plaintiff therefore do said work and plaintiff and aforesaid, as suffered, result ordinary care in the exercise of defendant knew, plaintiff unaware of said known, damages prays danger.” petition in the sum of $65,000. general and denial answer was
Defendant’s answering, special defend- following “Further defense: attempted plaintiff au- to move an that if the ant states plaintiff petition, sus- and in as stated tomobile doing, direct result injuries or as a so while tained proximately directly from resulted and same thereof, the contributing plaintiff negligence carelessness attempted plaintiff negligently thereto, in this, negligently automobile, said move great effort, force and pushed with too automobile said straining him- negligently to refrain failed fully that thе states further defendant self, SUPREME, MISSOURI, COURT OF y. Hunter knowingly assumed whatever risk and doing
inwas such work aforesaid.” *6 reply general upon The was a denial. may recovery
The facts relied for be best stated in own words. On direct examination, he testified: fifty-eight years employed by
“I am old. I the was Busy Candy Company defendant 1920, Bee in St. Louis driving wagon, candy hauling; a one-horse the from factory Broadway defendant’s to its store and its Sixth employed capacity Olive Street store. was in that I years for Schottgen, six and six months. Mr. de- the general manager, gave fendant’s me to what orders as work I was to do. He is located at the Seventh Street headquarters. store; that is his When I went to the de- company’s Broadway fendant store I was to take orders manager from Mr. Gibson and Mr. the Worth, Sid manager, Schottgen assistant so Mr. told me. The Broadway Broadway, store on was the- west side of fronting up coming east; in front of the base- through ment of the store the the elevator. sidewalk, was space through up which the elevator would come through the sidewalk covered was or doors shutters when the elevator was not in use. When I would come candy, around with a load and there was no automo- parked up bile in front of the I elevator, would back open candy the roll elevator, doors, truck from punch onto the then elevator, for button porter down in the basement to come to the elevator get goods. Very off the often there would be auto- parked go mobiles in front elevator. I would the car over, look and if I would I see couldn’t make I help would release the brake and I for would ask help me remove it. When I could release the brake and push myself push away the car I from in front myself. big, heavy of the elevator When it was a car get and I could to release the brake I would ask manager manager for Broadway or assistant —the I store, whichever one would come to first. I one, would ask sometimes
Sometimes the other. Lots OCTOBER TERM, Busy Candy Bee kelp and) pnsk of times I went in asked for an auto- away mobile from in front of the sidewalk elevator. On Friday July up to about afternoon, 2:30, 9, 1920,1 drove Broadway candy store load with a and there big, heavy right standing I machine where front, get my had to in to take off load. the machine I looked heavy thought over me and I it looked like it too for help, and I went asked for down, in and manager, went and I asked or assistant help, don’t know for and he said would have which, I myself, they goods do it for had to have the and he had day Friday, no me. That which is they special have their sales at the Company. get I found I out couldn’t into car re- help. It lease and so I went and asked for brake, *7 coupe, heavy very car, looked to me like an electric passenger glassed way car; it all the around. manager After the they or assistant me told my- any help didn’t have went and I back backed against push up to I found self it and commenced and kept just by degrees, it on out I could move and so I pushed pushing my twisting-it and it I back, and get quit I down аbout ten feet so I and when in, could just slapped up pushing something me it seemed like my strength against all to the side the head. I used strength push all I had. It took me about car, just push a little bit at a time. five I would minutes; pushing feeling quit if I I had a someone After dizzy, slapped my head; on the head felt me side my and I to around, around and started went and head wkgon go there a seconds—I don’t and I stood few to everything long; it seemed like if know how —but green turning and I blind, and then waited and real I was wagon the elevator and then it felt hole, backed like swelling my and stood head was I few sec-, when door, raised the and I raised then I and onds, to, porter punched come and re- for the the button I door my up so I take off the elevator send and leаse headache. All that a severe goods. time I had All the day, night Saturday all and Satur- and all and afternoon SUPREME, COURT MISSOURI, OF Hunter
day Sunday day. night any. slept and all Never don’t I Friday any remember that I had at all. rest I worked Saturday day, Sunday afternoon and all but I didn’t ’’ none. day On cross-examination, he testified: “On this my pounds candy I approximately had five hundred wagon, put up five-pound boxes. I took hook open raised the so that the elevator could out. doors come up The elevator comes three or four above the side- feet big drop walk, level with the so we can window, this porter big; door down we can load out the truck. The up stays does not come on the elevator. lie down there rings it takes off. I bell it When electric porter on all the two or three floors, calls candy the basement so I can shove the down him. coupe standing electric that was front elevator good-sized looked me like it was a car. I re- don’t long many member how I was, how seats had. my twenty-five thirty sat on minutes see party away. the car come take Then I got off and looked the car over and looked I around get and I couldn’t in to release the brake it looked heavy try by myself, too for me to to' move and I went help. the store asked keep' you anything stay-
“Q'. Was there you ing there if wanted to? A. I don’t know; supposed stay long. I time wasn’t there that nobody complained anything- “Q. they? that, And about Nobody did ring A. knew I was there. I did *8 porter. suppоsed ring bell for the the I wasn’t ring it. bell I didn’t the until after I went asked help. I for know if it don’t remember it was who asked. I don’t I manager, the or assistant but I spoke to one of them. He told me he had no for me. they myself, I have to it do had to have the goods. you simply That the
“Q. whole conversation; give went in and said me some to move an auto- A. sir; mobile? all I remember Yes, about it. OCTOBER TERM, you way “Q;.' Then he answered the an- said he myself, swered? got A. I would have to do it to have goods. put strength against the my I went out then and again the car. I did look the over car to see if I already could release the brake. I had looked it over myself once. I have moved automobiles when I could release the brakes. There tire on the end was a back put my of the car. I hand down the under the rim of my pushed away, put tire and then I took back and it my way. heels down this It ais block street there, just enough Washington' there is of a slant towards way. Avenue for the water to run that it was Yes, slightly put strength my against downhill. When I just quit automobile it would move but when I little, anymore. many it wouldn’t move I don’t know how pushed times I it to move it the ten or twelve feet. you pushing You each
“Q. knew time were you straining your strength were to do it? A. I didn’t myself. injuring I know was say injuring, you I
“Q. didn’t but were I mean yourself? straining A. Yes, sir.; to down. To my the best of recollection it took me five or ten minutes. giving strength I was the best I had. you got
“Q. And then after after that, the car you your down, backed truck and unloaded it? A. quit pushing? After I your you opened You backed
“Q. truck in and then quit pushing something A. After door? there was I slapped something felt like me on and I walked side, get wagon wagon to the over I and stood g;ot up seconds, for a few and then I on the pulled I it down then in I and backed and when I backed in, up get the elevator raised door to elevator get open got after hole, I the door and started to pieces rang’ the side then unhooked, I bell. stayed
porter up never did come on the sidewalk. He pushed goods down in the basement and I off supposed wagon. ring porter open wasn’t I ready. got everything I the door until had Then I would load,” ring-for porter to take *9 MISSOURI, 666 SUPREME COURT OF ' Candy Busy Bee Co. Was “Q. lie testified: redirect examination,
On anything driving just prevent you south to get A. I couldn’t Well, of curb? that automobile to the my enough put elevator load over the curb to the hole. The door was close truck out roll the fixed so I could it down in the that elevator and let of the onto place; if I certain basement. have to be I would good get the truck over far couldn’t foot too back I then.” tending prove testimony adduced
Medical plaintiff’s physical could have resulted that by testimony condition No other which he testified. of reason the facts by plaintiff. was offered involuntary plaintiff’s non- case, of At close to set it leave to record, suit was with move entered from the order of trial, and, aside and a new plaintiff' overruling in due motion, trial court his said appealed to court. time this ser- is axiomatic thаt master owes
I.
It
place
furnishing
reasonably
duty
him a
safe
vant the
reasonably
also
safe
in which work and
appliances
_
whié-h to do
and suitable
is
when the work
Furthermore,
his work.
Anticípate¿Tin'
injury-
require
men to do
nature as
engaged in
are
the men
the work
work, then
duty,
category
appliances. This
classed in
as
-the same
an insurer
however,
not make the master
does
safety on the other
the servant
for,
hand,
servant,
ordinarily
in
incident to
are
assumes
risks that
Railway
[Haviland
Co.,
v.
herent
the work itself.
112.]
172
l.
does not assume risks
Mo. c.
But
servant
neg
employment
that are caused
the master’s
ligence.
Pryor,
[Williams
v. Rail
613;
272 Mo.
Tull
v.
(Mo. App.) 572.]
way
unless
And,
Co., 216 S. W.
negligence
danger
by the master’s
or risk occasioned
obviously apparent-to
glаring
the servant as
so
danger, then
certain
immediate and almost
threaten
can
held
the risk nor
neither assumes
the servant
guilty
contributory negligence
of law.
a matter
[Thorpe
;
Hunter Light 109; Bowman v. Electric S. Again, 161.] W. been has said that, unless the *10 apparent prudent reasonably was so that no man would safely, think the work could be done not be should recovery ground. [Bow debarred from on this latter Light supra; Thorpe man v. Railway Electric Co., v. Co., supra.] analysis, question But, in the final we think the proximate resolves one into of cause. Therefore, itself legal question by "the here to be was is, determined us plaintiff’s injury, any, proximate the and immediate negligence failing result of defendant’s in to furnish him appliances help required with sufficiеnt or to do the work having request of him, in mind his made of master the help, injury for such on the other or, hand, was his the proximate plaintiff’s neg of immediate result own ligence assumption of the risk? guilty
Plaintiff claims that the defendant was of negligence failing either to furnish him with another helper, request after a made to the master therefor, proper necessary appliances, with which to remove the automobile in front of defendant’s store, injury that the ing- to suffered, have in endeavor claims way, proxi the automobile out of his was a negligence mate and direct result said of defendant. of directing him Furthermore, the au that, remove helper, tomobile of himself, without the assistance a thereby impliedly defendant the assured that he him safely, danger could-do the work alone and that the of doing great and.obviously plain apparent so was not so tiff as to threaten immediate and certain to him. Plaintiff has numerous authorities which he claims cited support But in all of cases, contention. those injury negligence result of on the was part provide failing necessary of the master reasonably been which result should foreseen " by superior knowledge, master because or, independent but causes, result of other connected coupled negligent of the master failure to furnish required. doing For instance, Light W. v. 213.S. in- Co., 161, in Bowman Electric SUPREME COURT OF MISSOURI, 668 jury pole slipping was caused reason one end of*a upon Meily a skid; v. 567, Railroad Co., 215 Mo. car Railway injured rolling upon party; wheels back Tull v. weight causing o., 216 572, S. tie W. a C injured party slip slippery and fall a embankment; Thorpe Railway engineer v. 89 Co., 650, failure of Mo. stop signal; Railway a receive Stoddard v. Mo. injured party’s caught frog; spring foot 514, Fogus Railway a App. careening
v. Mo. a 250, fly-wheel; Kavanaugh, Keegan unbalanced v. 62 Mo. supported insufficiently propped or embankment; App. Manufacturing Levecke where plank support fellow workman let down his end a upon ing heavy causing motor fall motor, injured party. But in none the cases cited physical or overexertion the result of strain *11 part injured strength party. on the of the plaintiff’s testimony, according to own is Here, injured apрarent he direct result of his was a physical than effort to do more his own overexertion and strength knowledge physi permit. of His own would his necessarily superior strength to was cal limitations accord Under that of the master. circumstances, authority, be held ing the master cannot well-reasoned to injuries, consequent whether this is true liable for or on con founded assumed risk established rule be injured tributory negligence servant. In Haviland of where servant Mo. a case v. Railroad strength employing injured by more own act was heavy necessary pushing steel rail a than was or effort recovery injury greased was up de a incline, a approval opinion quoted i(ts court nied, and this Georgia language following Railroad Worlds v. from employee a com of railroad an 99 Ga. 283: “Where to lift discharge directed pany, is duties, of his in the object, carry ordinary he bound cross-tie, is like an heavy, amount certain and that a is take notice to accomplish required physical strength will be physical amount he task; and if misconceives lifting himself strengths overstrains be exerted, n OCTOBER TERM, Bee' the master not liable. tie, injured, anchis thereby The fact supe- that he the orders of a acting under was rior at though the time does not alter the even .question, might have had that disobedience reason believe order result dismissal.” in his
In
plaintiff
Petrilli v.
&
In Leitner v. Grieb, the same question principle court said: “The is therefore one of precedent. not It is like this: The master directs perform his servant to a certain service; the servant ob- jects beyond power perform because he thinks his ought alone or that unaided, he assistance have' in the the master work; tells him if he does not choose quit to undertake his service. The servant does, attempt perform injured, however, to any the service and is appliances, reason of in defect the tools or place or the for the furnished but he servant, because beyond hás undertaken that which he knows is the rea- power. sonable exercise of his And furthermore, 'we know of no rule law holds the master liable damage for to his servant that cannot rea- anticipated sonably guarded against by be ex- proper ercise of care. the servant Here, assumed the holding To risk. h.old otherwise would that the mas- safety ter is an insurer of the of his servant while ’’ employ. amply supported by juris The rule is cases of other [Lively Railway (Kan.) dictions. 225 Co., 103; v. Pac. Kampeen Railway (Minn.) v. 189 N. Co., 123; W. Sten vog Railway v. 108 Minn. 199; v. Cox, Hines S. (Ky.) Valley Sandy W. Railway 373; Co. v. Tackitt, 167 Ky. App. 756; v. Railroad 517; Williams 207 Ill. Railway Ferguson v. Roberts 158 Ind. 634; and Cotton Tenn. Mills, 236.] proof
But,, there is no furthermore, the instant any may nor case, facts from which the inference be ' manager, that defendant’s drawn, or assistant directing to do the work himself, should could have foreseen that strain or overexert bring rupture himself about and thus of a blood ves- says help” sel in his brain. Plaintiff he asked “for superiоr my- was told that “I would have to do it they goods to have the self, had and he had no appear superior for me.” Thus far it does not that his purpose why knew or for what wanted. “I But, cross-examination, testified, went *13 671 OCTOBER TERM, Candy Busy
Hunter v. Bee Co. help. store and if asked for I don’t it was know manager, spoke assistant but I to one them. have He told me he had no for me. I would they myself, goods.-” to do it had to Where- have upon, question, he was asked “That was the whole you give simply conversation; went said me some help to move an to which he answered, aivtomobile?” “Yes, sir; that if is all I remember about it.” So that, permitted indulge we are the inference that the de- representative vice-principal fendant’s plaintiff that or- knew seeking; was move an never- automobile, plaintiff theless, is no the record evidence superior anything type told his as to the kind or size, un- automobile, its whether it location, was locked necessity locked, or .In removal. it does fact, its. appear representative, not that the we master’s whom testimony assume from the own in- about duties was weight, knowledge side of the saw, dr store, of, had character size, appear or location of the nor automobile, does any things. told him about of these plaintiff’s injury In that state of the record, not reasonably anticipated by to have been defendant, and, proximate defendant’s-neg- not hence, was result of ligence.
In ex rel. v. c. Ellison, State Mo. l. 472, we said: injury reasonably “If the not one to have been an ticipated sequence engineer, as a to the failure then such failure not, law, cause of injury. This is announced American doctrine Brewing Assn. Mo. l. whereat we Talbott, 141 c. negli said: authorities hold ‘Numerous is not gence prevent precautionary not to take' measures to injury prevented which, if taken, would have when reasonably anticipated could not have been exceptional not, under unless circumstances, happened.’ have quote In the we case, same l. c. approval following ‘Negligence
with Imposed Ray: proper inquiry ‘The Duties’ might whether the accident one avoided beeij. charged negligence anticipated occurrence, had its SUPREME, MISSOURI, COURT OF they taking
but then ex- the circumstances as whether,' anticipate pro- negligent failing isted, he was *14 against . vide . . From it we all, occurrence.’ the if take that this is that the established rule of court injury, have occasioned, the reasonably not one which could as anticipated sequence al-
been a of the as leged negligent alleged negligent then act was the act, injury, re- in and no the cause of the law ’’ covery import, can therefor. and be had similar to Of Railways 526. the same DeMoss effect, is why II. But reason the court nisi there is another recovery properly plaintiff action. denied this ap shows, far the record Plaintiff, so here dangerous method' selected more the Pareil^7 Dan°erous accomplishing work, ultimate the end his Metfod?U accomplished might re- he have the when same absolutely by adopting safe fact, safer, sult nothing record us which in the before method. There vice-principal plain- ordered defendant’s indicates that purpose of unload- for the remove the automobile tiff to place ing wagon particular other. none that at his indulge perhaps, might, the inference that we While plaintiff requested removing auto- the to assist reply the from defend- nevertheless, received mobile, clearly vice-principal de- all that indicated that ant’s the ultimate result be in, interested fendant was by accomplished plaintiff’s at the time, candy goods,” then e., i. the have the “had to defendant loaded candy weighed upon wagon. about The the put plaintiff’s according up pounds evidence, was, candy upon five-pound the elevator, boxes. wagon, the base- from the lifted from towas loaded candy could where ment store sidewallfi onto in a truck rolled from the sidewalk have either been candy five-pound packages or the elevator, wagon carried time, a few from have been lifted again, upon Then, placed the elevator. point might wagon at the side- some have backed automobile, standing side line on either walk OCTOBER, TERM, point candy rolled the ele- carried the (cid:127) question propounded vator. Plaintiff’s answer tо a. his own counsel on re-direct would have examination, “I place; to be at back a certain I a foot too far if get (the elevator) good I couldn’t truck over it purpose backing rather then”, wagon indicates directly apposition in front of, or in to, ele- merely perhaps, vator was one of convenience less and, wag- unloading- troublesome than the method safer on which was him. available to Time does not seem very important unloading- been a element in the wagon plaintiff’s for, on own statement, sat wagon twenty-five thirty “to minutes see party away,” during would come and take the car certainly that time he could have unloaded the *15 carrying candy, packages a few at a time, from wagon to the elevator. (1913 Ed.) ‘3
In Labatt on Master
Servant
sec.
quoting
Lothrop
1249, the text-writer,
v. Fitch
“
burg
says:
general
Railroad
The trial plain- court committed no error in recovery upon tiff a refusing the facts in evidence, Sup. Mo. —41?. MISSOURI, OF SUPREME COURT v. Mullins.
Cross involuntary judg- taken. aside the non-suit set Lindsay, accordingly concurs. ment nisi affirmed. C. is opinion by foregong PER CURIAM:—The Sbddon. adopted opinion 'All of the of the court. 0., is judges Graves, J., the result. concur; ALLEN; CHARLES IN ESTATE OF G. MATTER OF FRANK R. and WILLIE CROSS v. CROSS C. Appellant. MULLINS, One, April 13, 1925.
Division 1. ADMINISTRATION: of Minor Heirs. Preference The benefits person 1919, declaring en- Section Revised if no Statutes thirty applies titled to within distribution the estate for letters ap- days court, upon person failure to citation such and his days, may any pear grant person deemed most within five letters to Although suitable, be to minor heirs. were intended to extended minors, public administrator the sole are distributees charge appointed administra- entitled take of the estate to be precedent prescribed by said statute tor until conditions complied been with. Right -:-: of Public The sole distributees Administrator. and, years age, decedent the wife of were minors under fourteen they kept having predeceased him in the home of his resident were public Held, administrator sister and her husband. appointed charge ad- take of the estate or to not entitled to all, immediately death, upon decedent’s .nor ministrator timely appointed guardian minors and within -is husband *16 appear thirty days a suitable and he is deemed he and said sister ques- appointed person And in such case the administrator. to be proper claimants husband were said sister and her tion whether probate instance is not material. in the first court public Appointment. appointment -: Revocation 8. can be revoked of decedent’s estate as administrator administrator probate to be was not entitled own motion court of its meaning of appointed. cause within the revocation Such improvi- (Sec. 1919), but the correction of R. S. the statute authority. statutory without committed error .dent Administrators; Executors Headnotes: 1 and Citations 2879; 3, 24 C. J. Cyc.