Slagel v. Chas. H. Nold Lumber Co.

ELLISON, J. — This action is for personal injury. Defendant was the owner of a lumber yard and in the prosecution of the business was engaged in the hauling of large loads of lumber from the yard, the plaintiff being one of his teamsters. On the forenoon of the 7th of April he was driving a gentle team with a large load of lumber out of the yard and in doing so it was necessary to drive under a shed and out at an opening. The joist at the point in controversy supporting the roof of the shed, was eight feet and six inches above the ground. The top of the load of lumber was seven feet and three inches above the ground, leaving a space of fifteen inches between the top of the load and the joist where the wagon should pass out from under the shed. Plaintiff was sitting on top of the load. Before starting he made inquiry of the foreman if he could get through safely and was told “Yes, go ahead. There’s men on bigger and higher loads than that that have driven through there hundreds of times.” He then drove under the west end of the shed, but, as stated by him, the ground rises a little approaching the east end, “and as I drove under the east end of the shed I stooped to get under; I stooped as low as I could, and the joist or cross beam caught me at the back of the neck and shoulders and crushed my back.” The trial court sustained a demurrer to the evidence and plaintiff has brought the case here. [435] Notwithstanding the assurance given to plaintiff that he could drive under the shed, we are of the opinion that the trial court took the proper view of the case. An assurance of safety to the servant cannot be allowed to control his action as to that which is patently open to his observation. In cases of this nature apparently small differences in fact make a great difference in legal result. If plaintiff had been assured he could drive through safely and on once starting could not clearly see where he was going or the conditions into which he was moving; or, if he could see but could not stop after starting, we would have a totally different case from the one the record shows in this instance. Here the foreman told the plaintiff he could drive through, but the latter evidently saw or should have seen, as he slowly approached the place, that he could not pass under unless he laid down on the load or at least stooped quite low. There was no disturbance with his team or his wagon or harness, nor did anything happen to distract his attention. It was merely for him to indulge in a matter of common observation. It will not be pretended that he understood the foreman to say that he could get under by standing or sitting upright on the wagon. It was plainly nothing more than an assurance that he could get under, and so he could have, by lying down or stooping quite low. Besides, notwithstanding an assurance of safety, the servant must not abandon all exercise of common sense and prudence. The situation in which plaintiff found himself did not involve a question of expert knowledge, or of superior knowledge of the foreman. As he came to the low place he was in position to exercise better knowledge that the foreman had. We could well say here as was remarked by Judge Lamm in Knorpp v. Wagner, 195 Mo. 1. c. 666, that “In pleading plaintiff's ignorance and defendant’s knowledge, the learned counsel for respondent (appellant) doubtless [436] had in mind pronouncements of courts in this class of cases, wherein there always appears an element of ignorance on the part of the servant and superior knowledge necessarily implied on the part of the master. . . . The trouble with respondents’ (appellants’) case is that he had the superior knowledge . . .” of conditions at the time of his injury. We have recently had cases in this court bearing directly on the rule applicable to the facts shown by this record. [Meyers v. Glass Co., 129 Mo. App. 556; Pulley v. Standard Oil Co., 136 Mo. App, 172; 116 S. W. 430.] For other cases illustrative of the view we take of the case see Blundell v. Mfg. Co., 189 Mo. 552; Mathis v. Stock Yards Co., 185 Mo. 434, 448, 449, and other citations to be found in defendant’s brief. We think the judgment should undoubtedly be affirmed. All concur.