Van Edwards v. Barber Asphalt Paving Co.

92 Mo. App. 221 | Mo. Ct. App. | 1902

ELLISON, J.

This action is for personal injuries received by plaintiff. He- recovered judgment in the trial court.

Plaintiff was a teamster, owning his own team and wagon. He was engaged by defendant to haul asphalt in Kansas City to a point where defendant was paving a street in that city. The wagónbed and a frame upon which it rested and its fastening to the wagon proper was furnished by defendant. The bed was on rollers and was so contrived that when unfastened in front from the frame on the wagon it would roll backward, the rear end tipping to the ground and thus discharging the load. The fastening in front held the bed in place at all times except when loosened for the purpose of unloading.

This fastening is charged to have been defective. It consisted of a staple driven into a cross-piece on the frame and just under the front end of the bed and an iron hasp attached to the bed, together with a hook. The hasp would be placed over the staple and the hook then run through the staple over the hasp, holding it in place and thus securing the position of tbe wagonbed on the wagon frame. The defect in this contrivance, as charged by plaintiff, was that the hook was too light and that the cross-piece in which the staple was driven had become loose so that in traveling over the street "the hook was more likely to jostle out.” Plaintiff had unloaded a load of asphalt in the usual way and was returning for another load, when the hook aforesaid, lost its place, the bed rolled back, the rear end dropped to the street, throwing plaintiff onto the ground and doing him serious injury.

The trial court permitted plaintiff to show that other accidents of similar nature bad happened with this wagonbed when in the use of other employees. This was contrary to the rule adopted in this State and was therefore error. Goble v. Kansas City, 148 Mo. 475. The evidence was probably admitted by the trial court under the authority of Golden v. Railway, 84 Mo. App. 59. That case was where horses had bedome frightened at a pile of lumber beside the traveled track in a highway and, in order to show that such object would likely frighten horses, it was held proper to show that other horses, of like kind, had taken fright at the same object. We have already pointed out, at this term, the distinction between that case and one of the character of this case. Smart v. Kansas City, 91 Mo. App. 587.

Expert testimony was admitted for the purpose of proving that the fastening aforesaid was unsafe and the witnesses were permitted to express their opinion to that effect. It was not a case for expert evidence. The contrivance complained of which held the bed down, was as simple as can well be imagined. It was without a single complication. Its construction, whether safe or unsafe, was open to the observation and understanding of any man of ordinary sense. It was no more the subject for opinion of -experts than a simple gate latch, or that of a barn door. There was no foundation for the claim that an “expert” knew more about it than a juryman. Admitting the evidence was error. Benjamin v. Railway, 133 Mo. 288; Lee v. Knapp, 155 Mo. 610; Brown v. Plank Road, 89 Mo. 152; Eubank v. City of Edina, 88 Mo. 650; Hurst v. Railway, 163 Mo. 309.

The defendant now contends, that plaintiff was not “its servant, but an independent contractor” and likens him to a -truckman. In view of the concession made by defendant at the trial and'some of its instructions, we should say that that theory was not advanced at the trial. If it had been the plaintiff might then have gone into that question more fully and satisfactorily: We will add that even on the evidence given, tbe plaintiff’s position and relation to defendant was not like that of a truckman to his various patrons. Here the manner of loading was prescribed by defendant and the means of loading furnished. It is probable that the plaintiff was not free of the direction, superintendence and control of defendant. It is a question that ought to be, and undoubtedly can be made to appear clearly one way or the other, at another trial. So also can the technical objection to instruction No. 1 for plaintiff, be removed.

In our opinion the trial court could not properly have declared as a matter of law, that plaintiff was guilty of contributory negligence. The evidence made that a question for the jury and it was rightly left to them. It was held in Devore v. Railway, 86 Mo. App. l. c. 435, by Smith, P. J.: "Mere knowledge that there is danger in working with appliances or instrumentalities, furnished by the employer, will not defeat the action of the employee, unless the danger be so glaring as to threaten immediate injury, or unless it be unreasonable to suppose he could safely use them in ^he performance of the work required, by the exercise of ordinary care.” This is the ruling of the Supreme Court. Hurst v. Railroad, 163 Mo. 309; Hamman w. Coal Co., 156 Mo. 232.

The questions, of whether the defendant exercised ordinary care to furnish a reasonably safe wagonbed, whether plaintiff assumed the risk arising from the use of such bed, and whether plaintiff was guilty of contributory negligence, were questions for the jury. Thompson v. Railway, 86 Mo. App. 141; Fisher v. Lead Co., 156 Mo. 479, 492.

The judgment is reversed and the cause remanded.

All concur.