Cothron v. The Cudahy Packing Company
| Decision Date | 02 February 1903 |
| Citation | 73 S.W. 279,98 Mo.App. 343 |
| Parties | J. W. COTHRON, Respondent, v. THE CUDAHY PACKING COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. E. P. Gates, Judge.
REVERSED.
Judgment reversed.
Frank P. Sebree and John D. Wendorff for appellant.
(1) The court committed error in refusing to give instruction No. 1 asked by defendant. There is no evidence whatever even tending to show that said hangers fell on account of any defect or insufficiency of the rope, or on account of any improper method of doing the work. In fact, the evidence is entirely silent as to what caused the hangers to fall. Breen v. Cooperage Co., 50 Mo.App. 202; Brown v Land and Lumber Co., 65 Mo.App. 163; Plefka v Knapp, Stout & Co., 145 Mo. 316. (2) The court committed error in refusing to give instruction No. 2, asked by defendant, since there is no evidence in the case even tending to show that said hangers fell by reason of any defect or insufficiency of the rope. (3) There was nothing hidden or concealed about the rope, or hangers in question, and plaintiff was familiar with both said rope and hangers, having used said rope to elevate said hangers continuously for seven or eight days, just prior to said accident and was familiar with the manner in which said rope was being used and said hangers elevated, and knew the danger of the hangers falling on and injuring him, and therefore plaintiff can not recover since it was one of the ordinary risks incident to the employment which plaintiff assumed. Lucy v. Oil Co., 129 Mo. 32; Minnier v. Railroad, 167 Mo. 99; Bradley v. Railroad, 138 Mo. 293; Holloran v. Iron & F. Co., 133 Mo. 470; Nugent v. Milling Co., 131 Mo. 241; Junior v. Electric Light Co., 127 Mo. 79; Berning v. Medart, 56 Mo.App. 443; Harff v. Green, 168 Mo. 308. (4) The court committed error in refusing to give instruction No. 3, asked by defendant. Plaintiff's own testimony clearly shows that he was fully aware of his surroundings in performing the work in which he was engaged and knew of the danger of being struck by the hangers in case they should slip out of said rope. Minnier v. Railroad, 167 Mo. 99; Bradley v. Railroad, 138 Mo. 293; Holloran v. Union & F. Co., 133 Mo. 470; Nugent v. Milling Co., 131 Mo. 241; Junior v. Light Co., 127 Mo. 79; Berning v. Medart, 56 Mo.App. 443. (5) Instruction No. 3 given by the court of its own motion is erroneous in that it ignores the rule of law that plaintiff assumed the ordinary risks of his employment, and declares that he assumed only such risks as were so obviously dangerous as to threaten immediate injury. It is well-settled law that a servant in his work assumes not only the risks that are so obviously dangerous as to threaten immediate injury. but also the ordinary and usual risks of his employment. This instruction clearly violates this rule of law. Minnier v. Railroad, 167 Mo. 99; Bradley v. Railroad, 138 Mo. 293; Holloran v. Union Iron & F. Co., 133 Mo. 470; Nugent v. Milling Co., 131 Mo. 241; Junior v. Electric Light Co., 127 Mo. 79; Berning v. Medart, 56 Mo.App. 443.
Kagy & Horn for respondent.
(1) While there is no evidence directly showing what caused the hangers to slip out, the evidence is that they did slip out when raised to the second story, and the reasonable inference to be drawn from that fact is, that they were not sufficiently tied and could not be safely tied because of the condition of the rope which they were ordered to use. When the bundle had reached a point two stories up, the irons slipped out and fell to the bottom. They were drawn upward through openings in the joists about two feet square, and the reasonable inference is that in raising the bundle it swung like a pendulum and struck against one of the sides of the opening through the floor, which was too small for that purpose, and caused them to slip out and fall upon the plaintiff. There is a class of cases to which the doctrine of res ipsa loquitur applies. At the trial of the case in the argument on the demurrer to the evidence, Bro. Sebree urged the point now made, when Judge Gates referred to the case of Blanton v. Dold, 109 Mo. 64; Sackawitz v. Biscuit Co., 78 Mo.App. 144; Harff v. Green, 168 Mo. 308. (2) A demurrer to the evidence admits everything which the testimony conduces to prove, though but in a slight degree. Wilson v. Board of Education, 63 Mo. 137; Brink v. Railroad, 17 Mo.App. 177; Fisher v. Railroad, 23 Mo.App. 201; Noeninger v. Vogt, 88 Mo. 589.
--This is a suit to recover damages for a personal injury. The defendant is a packing establishment and at the time of the injury was engaged in constructing a large five-story building, the walls of which had been put up and the joists placed. The plaintiff was struck on the head and injured by one of a lot of cast-iron hangers which fell while he and two of his fellow-servants were elevating them by rope and tackle from the first floor to a floor above. Prior to the time of the occurrence plaintiff and another workman named Dee had been engaged in this work. The hangers in question were of castiron, about eleven inches long, two and a half inches wide and a half inch thick, and weighed a little more than six pounds. The method by which they were elevated was to tie six or eight of them on one end of a rope passing over a single pulley attached at one of the upper floors, whereupon said Dee and the plaintiff, while standing on the first floor, would take hold of the other end of said rope and pull the hangers to the desired height, at which point other workmen would disengage the hangers and drop the rope to the first floor for another bundle of hangers, and so on. Dee did most of the tying but plaintiff tied some of them; the bundle which fell being tied by the former. And while it was not shown just how it was tied in the rope, it was supposedly in the ordinary manner. By direction of defendant's foreman, plaintiff and Dee had made a covering over the place where they had to stand while engaged in their work, which was intended as a protection for them from danger of material falling from above. This covering was made upon the joists above of boards, was about ten by fifteen feet in dimensions and with an opening about two feet square through which latter the hangers would pass while being hoisted. The rope used at the time of the injury was shown by the evidence to have been old, stiff and frazzled at the end, but it had been in use during the preceding seven or eight days. Prior to that time they had been using another and different rope shown to have been in good condition but which, by order of defendant's foreman, was removed and the rope in use at the time of the accident substituted therefor.
The plaintiff in detailing what occurred at the time of the injury, testified that while hauling the rope he heard the irons fall on the covering above, at which time he felt the rope slacken and one of the irons in falling struck him on the head. He also stated that he had suggested to defendant's agent, who was superintending the work, and before they commenced using the old rope, the advisability of using the new rope, whereupon the agent had told him to use the former, saying to him: "If you can't pull that rope there are men outside that will pull it." The plaintiff further stated that he knew it was not a safe place to work; that there was danger of the irons coming out of the rope if not well tied, and that they would fall; and that he continued the work supposing that said agent knew more about the business that he (plaintiff) did, and that it would be safe.
The defense was a general denial, contributory negligence upon the part of plaintiff, and that he assumed the risk. At the close of plaintiff's evidence defendant interposed a demurrer which the court overruled.
Plaintiff relied for recovery upon the failure of defendant to provide him with a reasonably safe place to work and to provide him with reasonably safe tools and appliances. The known facts disclosed by the evidence are, that after the bundle of irons attached to the end of...
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