Summary
In Stremming v. Holekamp Lumber Co., Mo.App., 238 S.W.2d 31, 37, appellant contended the court erred in overruling defendant's objection to certain remarks made by plaintiff's counsel in his jury argument.
Summary of this case from Bader v. HylaridesOpinion
No. 28093.
March 20, 1951. Motion for Rehearing or to Transfer to Supreme Court Denied April 20, 1951.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, WILLIAM B. FLYNN, J.
Walter Wehrle, Clayton, Wendell Berry, St. Louis, for appellant.
Edward W. Frederickson, William L. Mason, Jr., St. Louis, for respondent.
This is an action by William Stremming, as plaintiff, against the defendant, Holekamp Lumber Company, to recover damages for personal injuries alleged by plaintiff to have been sustained on February 10, 1947, while plaintiff, an employee of the Dickie Construction Company, was assisting in the unloading of sheet rock wallboard from one of defendant's trucks. Said injuries were alleged to have been caused by the negligence of defendant's employee Elmer Merckel, who was in charge of said truck at the time, and who was also engaged in the work of unloading said truck. The trial below resulted in a verdict and judgment for plaintiff in the sum of $4,500. From the judgment on this verdict, defendant has appealed.
Plaintiff and Paul J. Whalen were both carpenters employed by Dickie Construction Company. On February 10, 1947, they were sent to a building of the Bell Telephone Company in Webster Groves, Missouri, to build partitions in said building with plaster-board purchased from the defendant, which board was to be delivered that morning.
About 9:00 a. m. on said February 10, 1947, the defendant's truck, operated by Elmer Merckel, arrived at the job loaded with forty or fifty bundles of sheet rock. Each bundle of sheet rock consisted of two sheets fastened together, making a bundle three-fourths of an inch thick, four feet wide, eight feet long, and weighing about ninety-six pounds. Plaintiff selected the place to put the sheet rock, which was about ten feet from the truck.
The bed of the truck was six feet wide and twelve feet long, measured from the back of the cab to the rear end. The sheet rock bundles were piled flat on the bed of the truck with one end within a few inches of the rear of the truck and the other about four feet back of the cab. The bed of the truck was about three feet six inches to four feet high. The only parties engaged in unloading the sheet rock at the time were plaintiff, Whalen, and defendant's driver, Elmer Merckel.
According to plaintiff's evidence, the method employed in unloading the sheet rock was for the driver of the truck to stand in the space between the sheet rock and the cab and slide each bundle toward the rear of the truck until it was partly off the back end of the truck. Plaintiff testified: "The truck driver would shove the two sheets off about half way and then balance it until Mr. Whalen and I got hold of it." Plaintiff and Whalen would then pick up the bundle of sheet rock, one on each side, and carry it a distance of about ten feet, and put it in a pile at a place that had been selected by plaintiff.
On cross-examination, plaintiff testified that Merckel would push a bundle of sheet rock until it would extend over the end of the pile of bundles "about four feet." He stated that he and Whalen would:
"Not necessarily pull it off. We would both have hold of it and the truck driver would let loose and it would be up to us to start it off.
* * * * * *
"Q. You got hold of it about in the middle, then walked right away, did you? A. Yes, sir."
Mr. Paul Whalen testified:
"I was on one side of the back of the truck and Bill (plaintiff) was on the other side, and the driver would pick up one end of the sheet and slide it partly off the back of the truck, and he would — I would get one side like this and Bill would get the other side, and we would carry it back about, I'll say, ten or twelve feet, and set it down, then go back to get another sheet, another double sheet.
* * * * * *
"Q. Well, on the other occasions could you tell us what the position of the pieces of sheet rock was just before you started to lift it off the truck? A. It was just about balanced; it was just about almost half way on; it wasn't leaning down and it wasn't leaning — it was just about half way off. It had to be that way in order for us to get our hands under it to lift it up. * * The truck driver held it on the truck."
On cross-examination, plaintiff testified that Merckel would push the bundle of sheet rock until the center of it rested on the end of the pile, then he (plaintiff) and Whalen would take hold of it and walk off with it.
It further appears from the evidence that when a bundle of sheet rock was placed on the pile plaintiff would straighten it, and Whalen would immediately go back to the truck. Whalen testified:
"The truck driver would hold on to the sheet until Bill got back.
* * * * * *
"Q. Well, would the truck driver start the sheet off the truck before Stremming got back? A. Never. He always held it there because I couldn't have held it myself. See, it was so balanced if he would let loose of it it would go sideways on him."
Mr. Whalen further testified that before plaintiff would get back to the truck, "the truck driver would have it out, balanced there. * * * He would have a hand on each end holding it up, and he wouldn't let loose of that until Bill and I got under it, you know, a man on each side."
About half of the load of sheet rock was unloaded from the truck when plaintiff's foot was injured by a bundle of sheet rock falling from the truck. Plaintiff testified that just before he was hurt he was straightening a bundle on the pile when he saw a bundle "starting to come off the truck." He stated that at that time Mr. Whalen was at the rear end of the truck on the right side, and that Merckel was on the truck reaching over the pile, trying to grab the sheet. He further testified that he jumped toward the truck, stooped, and tried to grab the bundle of sheet rock while it was falling, but never got his hands on it. He stated that as it fell it turned edgewise and struck his left foot across the instep.
Plaintiff further testified that Whalen had hold of the bundle of sheet rock as it fell; that "he (Whalen) was trying to control the sheet rock. I seen that * * * he held on to it as long as he could."
Whalen testified that just before plaintiff received his injury he and plaintiff had placed one of the bundles of sheet rock on the pile. He then stated:
"I went back to the truck. * * * Bill (plaintiff) stayed on the pile, near the pile, where we piled them, to straighten them out.
* * * * * *
"Q. And when you got back there, where was the top sheet of this sheet rock? A. Well, he (truck driver) had it balanced ready for us to take it off.
* * * * * *
"Q. And I believe you said that the truck driver was holding it? A. He was * * * on the back end. * * * He was holding it with both hands. * * * Well, I just stood there waiting for Bill to come back, and the first thing I knowed the sheet started to slide, and I was pretty busy then trying to hold it, and I had ahold of it like this, see, because I was ready to lift it up, and I didn't have much luck holding it because the thing is clumsy, it is four feet wide and eight feet long, and it started to slip over, it slipped down first, see, then I was going over with it, and Bill run back to try to catch it before it hit the ground, but he never got there quite in time with his hands, because the thing went over the back of the truck and came down edgewise on his instep.
"Q. When you were standing there and before the sheet rock started to move, did you have your hands on it? A. Yes, I believe my hands were on it ready to lift it up. See, Bill would have been back in a second or two seconds; it only took him a short while to straighten the pile. * * * It started coming off, yes, dropping away from me.
"Q. And at that time, or prior to that time, had you pulled or attempted to pull this sheet rock? A. No, I never pulled it because, why pull it? I couldn't have handled it if I did pull it. I couldn't have handled it myself. * * * Oh, no, I didn't pull it. * * * I did try to hold it."
Appellant assigns as error the action of the trial court in overruling its motion for a directed verdict.
The negligence assigned by plaintiff in his petition was that defendant's agent (1) "negligently and carelessly pushed, shoved, or otherwise propelled said bundle of wallboard in such fashion as to directly cause it to fall from the said truck and strike plaintiff"; (2) that said agent "carelessly and negligently turned loose of and released his hold from the said bundle of wallboard in such a manner as to directly cause it to fall from the said truck and against and upon plaintiff"; and (3) that said agent "caused, allowed and permitted the said bundle of wallboard to be propelled or to fall from the said truck without first exercising ordinary care to ascertain the position and location of the plaintiff and another person who was assisting in the said unloading of the said truck, so that it would be reasonably safe to cause, allow or permit the said bundle of wallboard to leave the said truck at the time defendant's said agent and servant caused, allowed and permitted the same to be propelled or to fall from the said truck."
In support of its first assignment of error appellant contends that there was no showing of any negligence on its part which could be said to be the proximate cause of plaintiff's injury, but that, on the contrary, the evidence shows, as a matter of law, that plaintiff's injuries were due to his own act in exposing himself to known and appreciated danger.
We believe that the plaintiff's evidence, which we have heretofore detailed, made a case for the jury on the issue of defendant's negligence. It appears from that evidence that the practice employed on the occasion in question was for Merckel to push each bundle of sheet rock toward the rear of the truck until it was balanced on the end of the pile with about four feet of it off the end of the truck. Merckel would then hold the bundle until plaintiff arrived at the rear of the truck to assist in removing the bundle. These bundles were too large and heavy for one man to handle. This should have been apparent to Merckel.
Plaintiff's evidence further shows that just prior to the time plaintiff received his injury Whalen went to the rear of the truck and observed Merckel holding a bundle of sheet rock balanced over the end of the truck. Whalen placed his hand under the bundle and immediately thereafter the bundle started to slide. Whalen testified he did not pull on the bundle.
From the foregoing evidence the jury could reasonably infer that Merckel either shoved the bundle from its balanced position on the end of the truck, or released his hold, and that by reason thereof the said bundle was caused to slide or fall from the truck, and that said act by Merckel was negligence under the circumstances. In our opinion, such a conclusion would not be contrary to the physical facts as shown by the evidence, nor be based upon surmise, speculation or conjecture, as urged by appellant.
Nor does the evidence show, as a matter of law, that plaintiff's injuries were the proximate result of his own carelessness and negligence in exposing himself to known and appreciated danger. The risk of bodily harm which plaintiff took in trying to prevent injury to the bundle of sheet rock was not so glaring and obvious as to make his act, as a matter of law, either the sole proximate cause of his injury, or a contributory cause thereof. Rather, the issue was for the jury who might reasonably find that plaintiff's act was the normal response that a reasonably prudent person would exhibit under the circumstances, and such as should reasonably have been anticipated by the defendant's agent at the time. Clearly, the issues of negligence and proximate cause were for the jury.
Appellant next complains that the court erred in permitting plaintiff to interrogate Elmer Merckel regarding the contents of a statement which he signed shortly after the accident. The ground of appellant's complaint is that the effect of the examination was to permit the witness to be impeached by proof of prior inconsistent statements with reference to matter not material to the issues. Witness Merckel while on the witness stand denied that on the occasion in question he had pushed the bundle of sheet rock off the rear of the truck. Prior to the trial, Merckel had given a written statement, the signature to which he admitted, in which he stated: "On the one double sheet by which one of the men was injured, I pushed the sheet off the rear end of the truck." It was proper to interrogate the witness concerning this prior inconsistent statement. A witness may be impeached by showing that he made statements inconsistent with his testimony. Mann v. St. Louis-San Francisco Ry. Co., Mo.Sup., 72 S.W.2d 977. The rest of the statement was consistent with his testimony on the stand, and any interrogation with respect to it was harmless.
During the cross-examination of Elmer Merckel, plaintiff's counsel was permitted to ask the witness if three persons were not needed to unload the truck — one person on the truck, and two on the ground. In answer to this question the witness stated that for some jobs four men might be required, and for others there might not be any men required. Plaintiff's attorney was also permitted to question Merckel regarding his testimony given in a deposition wherein Merckel had testified that having one man on the truck and two on the ground made it easier to handle the matter of unloading the truck. Merckel admitted giving the testimony, and again testified: "that makes it easier to handle." Appellant contends that the trial court erred in permitting this interrogation, for the reason that there was no charge in the petition that defendant was negligent in not furnishing a sufficient number of men.
The objection urged here was not made below until after the witness had answered the questions propounded. The objection, therefore, came too late to preserve for review the point now urged. Schulz v. St. Louis-San Francisco Ry. Co., 319 Mo. 8, 4 S.W.2d 762; Salmons v. St. Joseph G. I. Ry. Co., 271 Mo. 395, 197 S.W. 35; Garvey v. Piel et al., Mo.Sup., 43 S.W.2d 774; Harrison et al. v. St. Louis-San Francisco Ry. Co., Mo.App., 291 S.W. 525; Curtis v. Truitt, Mo.App., 7 S.W.2d 383; Stevens v. Westport Laundry Co., 224 Mo.App. 955, 25 S.W.2d 491; Consolidated School District v. West Missouri Power Co., 329 Mo. 690, 46 S.W.2d 174; Brown v. Winnwood Amusement Co., 225 Mo.App. 1180, 34 S.W.2d 149.
It is next urged that the trial court erred in treating Merckel's statement as proof of the facts stated therein. The trial court did not so treat said evidence. The statement was admitted in evidence for the purpose of impeachment. For that purpose it was clearly admissible. Mann v. St. Louis-San Francisco Ry. Co., Mo.Sup., 72 S.W.2d 977. If defendant wanted to limit the effect of the testimony to the purpose for which it was competent, it should have requested an instruction to that effect. City of St. Louis v. Worthington, 331 Mo. 182, 52 S.W.2d 1003; Crabtree v. Kurn, 351 Mo. 628, 173 S.W.2d 851. This, defendant failed to do — either at the time of the admission of the evidence, or at the time the case was submitted. Having failed to request such an instruction, defendant will not be heard to say that the court, by failing to limit the effect of the evidence offered to the purpose for which it was competent, treated the statement as proof of the facts therein stated.
It is urged that Instruction No. 1 is erroneous. Said instruction hypothesizes plaintiff's theory of liability. The negligence required to be found by said instruction is: "* * * and if you further find and believe from the evidence that at the time of said occurrence the said Merckel caused a bundle of sheet rock to fall or slide from the said truck at a time when he knew, or in the exercise of ordinary care could have known, that the plaintiff was not in a position to assist the said Whalen in receiving the said bundle from the said truck; and if you further find and believe from the evidence that said Merckel knew, or in the exercise of ordinary care could have known, that it would be dangerous to cause the said bundle to fall or slide from said truck at said time * * *."
The points raised in support of appellant's contention are that the instruction is erroneous for the reasons that: (1) there was introduced no substantial evidence of negligence to support the giving of said instruction; (2) said instruction is broader than the pleadings and the evidence; and (3) it failed to hypothesize facts to support a finding that Merckel caused the bundle of sheet rock to fall.
What we have said in this opinion in disposing of appellant's first assignment of error likewise disposes of the first complaint above mentioned regarding said instruction.
Nowhere in its brief has appellant pointed out wherein said Instruction No. 1 is broader than the pleadings, and we have been unable to find such infirmity. The point urged is in our opinion without merit, as a comparison of the charge in the petition with the instruction will disclose.
The last point urged against said Instruction No. 1 is that the instruction is erroneous because it failed to hypothesize the facts to support a finding that Merckel caused the bundle to fall. Under the evidence adduced, the jury could find that Merckel either pushed the bundle of sheet rock off the end of the truck, or released his hold upon it while it was balanced over the end of the truck. In either event, Merckel "caused" the bundle of sheet rock to fall or slide. By the use of the word "caused", both alternatives were submitted; and it is not suggested that any act, not covered by the pleadings and the evidence, was urged under this term as a ground of liability. If appellant thought the instruction was confusing by reason of the use of the word "caused", it should have given a clarifying instruction. We rule the point against appellant's contention.
Appellant's final contention is that the court erred in overruling defendant's objection to certain remarks made by plaintiff's counsel in his argument to the jury. In the transcript of the record said argument, and the objection made by defendant's counsel, appear as follows:
"One other thing over and above that is the statement of Mr. Merckel himself to the effect, `I shoved it off the rear end of the truck.' That is not me or Mr. Wehrle or anybody else, but that is the evidence you have to base and judge this case on.
"Mr. Wehrle: If Your Honor please, pardon me. I am sorry to interrupt, but I must object to that for the simple reason — and keep the record straight — that came in merely for the purpose of impeachment and not for the purpose of proving an ultimate fact.
"The Court: The objection will be overruled.
"Mr. Frederickson: I will withdraw that statement, if the Court please."
In its motion for new trial defendant made no complaint with reference to the above argument or the court's ruling with respect thereto. We are, therefore, precluded from considering appellant's complaint here. R.S.Mo. 1949, § 512.160; Supreme Court Rule 3.23; Naylor v. St. Louis Public Service Co., Mo.App., 235 S.W.2d 72.
Finding no error in the record, the judgment appealed from is affirmed.
McCULLEN and BENNICK, JJ., concur.