Dickinson v. Jenkins

Decision Date04 April 1910
Citation128 S.W. 280,144 Mo.App. 132
PartiesEDWARD B. DICKINSON, Respondent, v. M. R. JENKINS, Appellant
CourtKansas Court of Appeals

Appeal from Livingston Circuit Court.--Hon. Francis H. Trimble Judge.

REVERSED.

Judgment reversed.

Frank Sheetz & Sons for appellant.

(1) The plaintiff was employed to do certain work: pile and re-pile timbers and paint or varnish them; that was his work and whatever risks attended the work were assumed by him, and for that reason the demurrer to the evidence should have been sustained. Bradley v. Forbes Tea Co., 213 Mo. 320; Hollaran v. Union Co., 133 Mo. 470; Harvester Co. v. Zak Zewski, 220 Ill. 522, 77 N.E. 147; Winkler v. Basket Co., 137 Mo. 400. (2) The master can conduct his business in his own way, though a different method would have been less dangerous. Bradley v Railroad, 138 Mo. 293; Kane v. Railroad, 112 Mo.App. 650; Hollingsworth v. National Biscuit Co., 114 Mo.App. 20. (3) The timbers were piled in stacks by the fellow-servants of plaintiff. Putnam was a fellow-servant with plaintiff. Hawk v. Lumber Co., 166 Mo. 129; Fogarty v. Transfer Co., 180 Mo. 490; Depuy v Railroad, 110 Mo.App. 110.

Scott J. Miller for respondent.

(1) The place in which respondent was directed to work was unsafe, and knowledge of its dangerous condition was known to the defendant and unknown to the plaintiff. This being true, defendant is liable. McCormick Harvester Co. v. Zak Zewski, 220 Ill. 522; Holloran v. Iron Co., 133 Mo. 471; Doyle v. Trust Co., 140 Mo. 19; Sambos v. Railroad, 134 Mo.App. 460; Smith v. Kansas City, 125 Mo.App. 155. (2) There was no assumption of risk in this case. Rigsby v. Supply Co., 130 Mo.App. 133; Depuy v. Railroad, 110 Mo.App. 120; Railroad v. Myers, 226 Ill. 358. (3) The verdict is for the right party and is supported by substantial testimony, and the judgment will not be disturbed on appeal. Bradford v. Railroad, 119 S.W. 32.

OPINION

JOHNSON, J.

Action by a servant against his master to recover damages for injuries alleged to have been caused by negligence of the master. Verdict and judgment were for plaintiff in the sum of one thousand dollars and the cause is before us on the appeal of defendant.

The injury occurred in the morning of July 13, 1908, in the paint room of an agricultural implement factory operated by defendant in Chillicothe. Plaintiff, a common laborer, had been employed in the factory about three months and, at the time of his injury, was engaged with a fellow-servant in the task of taking timbers, recently painted, from the piles where they had been placed to dry, stenciling them and then repiling them in an adjoining room. These timbers, used in the manufacture of hay-stackers, were 18 feet long, 5 1-2 inches wide, 2 1-2 inches thick, and each weighed about 140 pounds. The pile was five feet high and consisted of three stacks set close together, each stack being about twenty inches wide. The timbers were set on edge, there were ten layers, and each layer rested on a thin strip placed crosswise under each end. Plaintiff and his fellow-workman had removed all of the layers of the first stack but the last and were in the act of stooping to pick up a timber from the last layer when the outside timber on the top layer of the second stack toppled off and fell on plaintiff, injuring him.

The foremen of the paint room and another workman had piled these timbers and it appears had used a crosspiece that was too short to extend under the end of the outside timber. To remedy this deficiency, they had put in a short strip called a "shinney," but while this prevented the freshly painted edge of the timber from coming in contact with the timber under-neath, it did not serve as a binder to hold the timber in place, but left it unstable and likely to fall. Though the foreman helped to build this particular pile, it appears that the workmen employed in the room, including plaintiff, piled such timbers and that the method followed in this instance was that usually pursued in the shop. The negligence charged in the petition is "that the falling of said heavy stick of timber that injured plaintiff as aforesaid, was caused by, and was the result of the careless and negligent act and omission of defendant, by his superintendent, foreman and employees having in charge the stacking and handling of said lumber as aforesaid, and the careless and negligent act of defendant's said foreman in so leaving said large piece of timber at such a great distance from the floor insecurely stacked, placed or stacked, that the defendant by his superintendent and foreman having charge of the work as aforesaid, who at all times well knew, or by the exercise of ordinary care or caution could have known the negligent acts and omissions as aforesaid and the danger incident thereto; that at the time of his said injury the plaintiff was, at the direction of the foreman,...

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