Allen v. Quercus Lumber Co.

• Decision Date: 04 June 1915
• Docket Number: No. 1344.,1344.
• Citation: 177 S.W. 753,190 Mo. App. 399
• Parties: ALLEN v. QUERCUS LUMBER CO.
• Court: Missouri Court of Appeals

177 S.W. 753

190 Mo. App. 399

ALLEN v. QUERCUS LUMBER CO.

No. 1344.

Springfield Court of Appeals, Missouri.

June 4, 1915.

Rehearing Denied June 24, 1915.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Action by William Allen against the Quercus Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Sheppard, Green & Sheppard, of Poplar Bluff, for appellant. Abington & Phillips, of Poplar Bluff, for respondent.

FARRINGTON, J.

The petition in this case alleges: That the defendant is a corporation operating a sawmill near Poplar Bluff, Mo., and that on August 13, 1914, plaintiff was a common laborer in its employ. That the defendant, in the operation of its plant, maintained a platform on which it placed timbers which had been sawed for bridge purposes, from which platform it loaded such timbers onto railroad cars which stood on a switch alongside the platform. That the timbers were finished in the mill and then conveyed by servants of the defendant on a tramway that also ran along the platform, on the opposite side from which the railroad switch stood. That this tramway or tramtrack was 7 or 8 feet above the platform. That skids or runners were laid on top of the platform and were greased so that the timbers to be loaded into railroad cars could be shoved or skidded over to the side of the platform where such cars stood. That these runners were situated above 7 feet and 9 inches apart, and not only ran over the flat platform, but also extended at an angle up to the tramtrack which stood some 7 feet above the platform. That the timbers that were brought out from the mill to be dumped onto the platform were of various lengths—from 12 to 18 feet—and were from 10 to 18 inches through, and were of considerable weight. It is alleged that such timbers were dumped over on the inclined skids indiscriminately, and that when the platform was filled up they continued dumping the timbers until they lay upon the inclined portion of the skids to the tramway. That there were a number of these skid runners, and that when several of them were filled up, the timbers being of various lengths and sizes, would overlap and interlace with timbers which were dumped over on an adjoining set of skids. It is alleged that on August 13, 1914, when said platform and several of the inclined skids were filled with timbers, the plaintiff was set to work taking such timbers from the platform and loading them into the railroad cars; that after taking all from the flat portion of the platform, plaintiff, in the discharge of his employment, was taking the timbers which remained on the inclined portion of the skids, and that in doing so he loosened a timber which was holding up a number of others on this incline, and that as the timbers came down he stepped back into a vacant space between an adjoining pair of skids in order that he might get out of the way of the timbers coming down; and that the timber which he had loosened, in descending, caught in that pile on the adjoining skids under which plaintiff was standing and brought it also down on plaintiff, thereby crushing his leg and injuring him severely. The amount asked by plaintiff is $7,500. The acts of negligence alleged were that the defendant carelessly and negligently built, maintained, and used such skids constructed so closely together that they were insufficient and improper to perform the functions required of them; further, that the defendant negligently placed such timbers of various lengths indiscriminately on such skids resulting in their interlacing when being taken down, and that from such negligent piling of the timbers the place at which plaintiff was set to work was rendered unsafe; also that, knowing of the condition above described, defendant ordered the plaintiff to loosen said timbers, and that as the result of such negligent order he was injured.

The defendant answered by a general denial and by a special plea of contributory negligence charging that plaintiff was careless, negligent, and unskillful in pulling or attempting to pull the timbers down, and that plaintiff saw and well knew the conditions of the place at which he was set to work, and that he was injured by reason of an accident which is ordinarily incidental to such line of employment.

At the close of plaintiff's evidence the defendant offered an instruction in the nature of a demurrer to the evidence which was overruled. The defendant refused to introduce any evidence, and the jury under instructions returned a verdict for plaintiff for $4,000, and judgment for that amount was rendered, from which defendant has appealed to this court.

The court at the request of the plaintiff gave three instructions. The first is on the measure of damages. The second merely defines generally the term "negligence." Neither of these instructions is now complained of. The third instruction is as follows;

"The court instructs the jury that it was the duty of the defendant in this case to use ordinary care to furnish plaintiff with a reasonably safe place in which to work, and if you find and believe from the evidence that its failure so to do, if you find it did fail to do so, caused the injury to plaintiff described in evidence without negligence on his part contributing thereto, then and in that event your verdict will be for the plaintiff."

The giving of this instruction is assigned as error. The court of its own motion gave the following instruction:

"The court instructs the jury that you must disregard entirely all evidence in this case as to direction or orders given or statements made by Dolph Bebee, and that you will not consider any such testimony in making up your verdict."

While the plaintiff charged three grounds of negligence, the record shows that the one on which plaintiff sought a recovery was that he was negligently ordered to loosen the timber which resulted in his injury. In this respect it is shown that the foreman of the defendant called plaintiff with several colaborers to come and begin loading the car. The timber had been sold to the St. Louis & San Francisco Railroad Company, and its timber inspector, one Bebee, was there for the purpose of inspecting the timber as it was placed in the car. Before he would permit them to...