Adkins v. Sutherland Lumber Co.
| Decision Date | 04 November 1957 |
| Docket Number | No. 22399,22399 |
| Parties | Rufus ADKINS Plaintiff-Respondent, v. SUTHERLAND LUMBER COMPANY, Inc., a corporation, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John L. Sheridan, Donald E. Raymond, Kansas City, for appellant.
Clyde J. Linde, Robert B. Langworthy, Billy S. Sparks, Kansas City, for respondent.
This is an appeal by defendant from a judgment in favor of plaintiff for $7,500. Jurisdiction is in this court. Section 3, art. V, Constitution, V.A.M.S.
The action arose out of a fall by plaintiff (respondent) at defendant's (appellant's) lumber yard in Kansas City. Defendant does not contest the fact that plaintiff received the injuries complained of at the time and place alleged, and concedes that the amount of the verdict is proper, if, under the evidence, plaintiff is entitled to a verdict. Evidence touching such questions will not be mentioned.
The issues on appeal are: (a) That the court erred in not directing a verdict for defendant for the reason that there is no substantial evidence to support the allegations of negligence submitted by the instructions; and (b) that plaintiff was guilty of contributory negligence as a matter of law. In determining these issues, we must view the evidence in the light most favorable to the plaintiff and give him the benefit of all inferences reasonably to be drawn therefrom. Plaintiff's case cannot fail as a matter of law, because of lack of evidence or because of contributory negligence, unless the evidence and the inferences reasonably to be drawn therefrom are so strongly against plaintiff as to leave no room for reasonable minds to differ on the issues submitted to the jury. See an array of cases cited, Mo.Dig. Vol. 22, Negligence, k136(9)(14).
To better understand the grounds of negligence submitted, and the evidence relative thereto, we set out the material part of plaintiff's Instruction No. 1. It required the jury to find that plaintiff was a business invitee on defendant's premises; that while there he was invited by defendant's employee, Bialek, 'to go upon the lumber stacks in one of defendant's lumber sheds; that while on the lumber stacks plaintiff was invited by Bialek to follow (him) * * *; that plaintiff accepted said invitation * * *; that as plaintiff was so following * * * Bialek stepped down onto a lower stack of lumber; that the step-down was approximately 18 inches; that the lower stack of lumber was approximately 38 to 46 inches wide; that the lumber in said lower stack was stacked finished-side to finished-side and was likely to slip and fall when stepped upon; that the step-down was not obvious to plaintiff in the exercise of ordinary care; that plaintiff did not know said step-down was present and how said lower pile of lumber was stacked and of its width; * * * that Bialek did not warn plaintiff of said step-down and of the width of said lower pile of lumber and the manner in which it was stacked; that Bialek stepped onto said lower pile of lumber in such a manner as to cause the top boards thereof to slide and fall onto the ground as plaintiff was in the act of stepping down onto said lower pile of lumber; that the step-down and the sliding boards caused plaintiff to lose his balance and footing and * * * to fall to the ground; * * * that in the exercise of ordinary care defendant * * * knew or should have known of said step-down and that said lower pile of lumber was approximately 38 to 46 inches wide and was stacked finished-side to finished-side and was likely to slip when so stepped upon, * * * in time to have warned plaintiff of said conditions before plaintiff stepped upon said lower pile of lumber; that defendant failed to warn plaintiff thereof; and that in failing to warn the plaintiff thereof, * * *, the defendant did not exercise ordinary care for the safety of plaintiff and that the defendant was thereby careless and negligent; and that the act of Bialek in stepping down on said lower stack of lumber so as to cause the top boards thereof to slide to the ground, while plaintiff was in the act of stepping down onto said lower stack of lumber, was a failure by the defendant * * * to exercise ordinary care for the safety of plaintiff, and * * * was thereby careless and negligent; and that as direct result of said carelessness and negligence * * *', plaintiff was injured, etc.
Thus the charge of negligence in failing to warn consists of three elements: (a) The presence of a step-down; (b) the presence of the lower pile of lumber, which was 38 to 46 inches in width; and (c) that the lower stack of lumber was arranged finished-side to finished-side and was likely to slip when stepped upon. Plaintiff's theory is that those three conditions together created a dangerous situation of which he was entitled to be warned.
The second ground of negligence, which was submitted in the conjunctive, consists of the act of Bialek in stepping down on the lower stack of lumber under existing conditions, thereby causing the boards to slide to the ground while plaintiff was in the act of stepping onto said lumber.
The evidence stated in the light most favorable to plaintiff, is substantially as follows: Plaintiff was a carpenter-contractor; defendant owned and operated a lumber yard in Kansas City; plaintiff had been a customer of the defendant at this yard for more than 10 years and during that time had made more than 200 purchases of material. About 4:30 p. m. on January 2, 1953, plaintiff drove his truck to the office of the defendant and placed an order for certain type lumber; Mr. Bialek, an employee of defendant, told plaintiff he would show him the lumber and they drove plaintiff's truck to a shed about a block away, where the lumber was stored. This shed was approximately 150 feet wide and 250 feet long; the length of the building extends east and west. They drove plaintiff's truck into a passageway near the middle of the shed. The lumber was stacked on three different levels or, as referred to by the witnesses, 'decks'. The lower deck was at ground level and was a concrete floor. The second deck was a wood floor and there was a passageway or 'catwalk' along the west side of the second deck approximately 3 feet wide, with a railing; along the north side of the second deck was another catwalk with railing approximately 2 feet wide. The third deck was a wood flooring upon which lumber was stacked. There were ladders extending from the ground to the second and third decks. On the day in question, various types of lumber, in various heights, were stacked on all three decks. After the truck was driven into the shed, Bialek told plaintiff to remain on the ground and he would ascend to the second deck and pass down to him specimens of the lumber desired. This was done, and plaintiff was not satisfied with that material. Bialek then told plaintiff, 'Come on over here and I will show you some that is better.' Plaintiff and Bialek ascended the ladder to the third deck. The lumber on the third deck was stacked in a north and south line and the stacks were of different height from approximately 2 feet to 4 feet. After reaching the third deck, Bialek led the way and was about one or two steps ahead of plaintiff, and slightly to his right. They passed over some of these uneven stacks, and walked north on lumber stacked about 2 or 3 feet high. This stack ended at the north edge of the third deck. Bialek stepped across the two-foot catwalk onto a stack of knotty pine lumber, which, plaintiff said, was about 18 inches below the stack of lumber on which they were walking and was 38 to 46 inches in width. When Bialek stepped onto the knotty pine stack, some of the top boards slipped, and at that instant the plaintiff was in the act of stepping and continued his forward motion and fell to the ground. The knotty pine was stacked in an east and west line, while the lumber upon which plaintiff was walking was stacked in a north and south line. Thus the stacks were at right angles. The knotty pine was stacked from the ground floor to within 18 inches of the lumber on which plaintiff and Bialek were walking. In other words, there was an 18-inch step-down and a 2-foot open space between where Bialek and plaintiff were walking and the top of the knotty pine. The knotty pine boards were 16 feet long and 12 inches wide and the stack was 4 boards wide and extended about 14 feet above ground level. Plaintiff testified that he did not know of the step-down and was not warned by Bialek. The point of the step-down was about 16 feet above ground. When Bialek stepped onto the knotty pine and the boards slipped, he turned and took hold of the lumber upon which they had been walking and did not fall.
Plaintiff testified, 'As we proceeded north on this material pile upon the third stack, * * * Mr. Bialek was a pace or so ahead of me, * * * and it appeared to me he stepped down just a little bit and he swung himself around. That is all that I remember seeing, is the board moving and he spun himself around and was grabbing the boards that were near. Looked like a pile stacked there. The north side of this material pile that he had stepped on, the boards were sliding when I had made my step onto it and I could not catch myself. I fell in between two piles of lumber. I believe at that time there were three piles of lumber north of a catwalk, north of this deck. * * * The lighting in the building seemed to be good, it seemed that the building was light, the lights were on, however, the lights were high and there was a shadow, we were walking in a shadow. I could see very well where I was going, it wasn't too dark in there but the lights were on. * * *
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