Baker v. Scott County Milling Co.

• Decision Date: 03 November 1931
• Docket Number: No. 21647.,21647.
• Citation: 43 S.W.2d 441
• Parties: BAKER v. SCOTT COUNTY MILLING CO.
• Court: Missouri Court of Appeals

43 S.W.2d 441

BAKER v. SCOTT COUNTY MILLING CO.

No. 21647.

St. Louis Court of Appeals. Missouri.

November 3, 1931.

Rehearing Denied December 8, 1931.

Appeal from St. Louis Circuit Court; Moses Hartmann, Judge.

"Not to be officially published."

Action by Henry Baker against the Scott County Milling Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Ralph E. Bailey, of Sikeston, and Anderson, Gilbert & Wolfort, of St. Louis, for appellant.

John P. Griffin, of St. Louis, for respondent.

HAID, P. J.

This is an appeal from a judgment in favor of the plaintiff for personal injuries received by him while employed in the wrecking of a grain elevator. Plaintiff recovered a verdict of $8,000 but remitted $500 thereof, and judgment was entered in his favor for $7,500.

This is the second appeal in the case. Upon the first appeal there was a verdict and judgment for defendant, which judgment was reversed by the Supreme Court and the case remanded to the circuit court. Baker v. Scott County Milling Co., 323 Mo. 1089, 20 S. W.(2d) 494, 495.

Defendant had on its premises at Sikeston, Mo., two steel elevators or grain tanks, which it desired to have taken down. These elevators or grain bins are described by the plaintiff as being iron circles about forty feet across and about forty feet high, the iron being about three-eighths of an inch thick; each with wooden partitions dividing the same into eight compartments; the bottom of each was banked up with dirt in a funnel shape to a height of about eight feet, and on top of the dirt was concrete to make a smooth surface so that the inside was built in a slanting fashion with the low place near the center so as to cause the grain to fall to a point where a spout was located to precipitate the grain upon a live belt. One of the grain bins had been entirely dismantled, and it was while employed in dismantling the second one that the accident occurred, on May 12, 1924.

In his petition the plaintiff alleged that in order to wreck the grain bin it was necessary to remove the dirt and concrete above referred to and that while he was shoveling dirt out of the bottom of the elevator, under the orders and directions of the defendant, its officers and agents, a large portion of said dirt and concrete fell from the top of said pile, to wit, about two yards, and struck the plaintiff and knocked him down and injured him severely, which injuries were caused by the carelessness and negligence of the defendant in the following respects:

First. In that the defendant removed the earth and dirt from underneath said concrete so as to allow same to fall, and it knew, or could have known, by the exercise of ordinary care, that the same was liable to fall, and did fall, on the plaintiff and injure him.

Second. In that the defendant failed and neglected to remove said dirt in a reasonably safe manner, in that it attempted to remove same at the side of said pile and undermined the said pile of dirt and concrete, which caused it to fall.

Third. In that the defendant failed to remove said dirt in a reasonably careful and prudent manner by removing the top of said dirt first.

Fourth. In that it failed to exercise ordinary care in removing said dirt by removing same in a slanting or sloping fashion and not undermining same and avoiding having said dirt and concrete fall on and injure the plaintiff.

Fifth. In failing to warn the plaintiff that said dirt and concrete was liable to fall when it knew, or could have known, by the exercise of ordinary care, that said dirt and concrete was liable to fall and injure the plaintiff.

Sixth. In requiring the plaintiff to work in close proximity to said pile of dirt and concrete, when the defendant knew, or could have known, by the exercise of ordinary care, that said pile of dirt and concrete was liable to fall on and injure the plaintiff.

Seventh. In that the defendant failed and neglected to exercise ordinary care to furnish the plaintiff a reasonably safe place to work, by requiring him to work next to and in close proximity to said pile of dirt and concrete, when the defendant knew, or could have known, by the exercise of ordinary care, that it was liable to fall, and did fall, and injure the plaintiff.

The answer, after admitting that the defendant is a corporation as alleged, denied generally the allegations of the petition.

The first error assigned is that the court erred in refusing to give, at the close of all the testimony, the instruction requested by defendant in the nature of a demurrer to the evidence.

Plaintiff testified that he was working at the Scott County Milling Company when he was hired by Otis Bryant to help tear down the elevators or grain bins; that he had known Bryant for many years doing work as a laborer and that he never knew Bryant having any contracts to do wrecking except this job of taking down those elevators; that he knew Bryant as a prize fighter for four or five years at his home and in the neighborhood; that after he went to work, plaintiff got his directions from Mr. Bowman, president of the defendant, and from Joe Bowman, superintendent of the mill, and from the mill-wright, Hahn; that the mill proper was some two hundred or three hundred feet from the elevators; that Mr. Bowman came around pretty regularly and told them where to put the stuff, the timber and bolts, and everything that came down out of the elevator; that all of the stuff was to be saved and kept separate; that he would be there every other day and stayed possibly thirty minutes; that at the time Otis Bryant, Reecie Singleton, Clyde Bryant, and plaintiff were working there; that Joe Bowman also told the men to save the stuff and where to put it and one day had them stop work and load some lumber they had an order for; that Joe Bowman passed the work every day and would stay from five to twenty minutes; that Joe Bowman would direct where to put the stuff and keep the lengths in certain piles and had them keep the stuff and the concrete separate from the dirt; that Mr. Hahn was around every day or so and would make suggestions; that the metal top spouts and some things to bring the grain from the elevator to the grain bins were removed by employees of the Milling Company before the dismantling of the elevators in question was begun; that ropes, locks, rivet cutters, and large hammers used by the men in taking the tops off remained after that work was completed and the men engaged in dismantling continued to use these tools; that the shovels and picks which were used came from the elevator of the defendant, and, so far as plaintiff knew, Otis Bryant owned no tools; that he had been working on this job about three or four weeks before he was injured; that the wooden partitions were all fastened and it was necessary to remove the dirt before the wood could be taken out; that at the time he was injured he was moving the dirt out of one of the bins, that is, the bottom of one of the compartments; that the dirt was straight up and down and it slanted; that Otis Bryant was undermining this and letting it fall, and Reecie Singleton and Clyde Bryant and plaintiff were shoveling it out; that they started at the back of the compartment, the dirt from the front where it was thinnest, up to the highest place, being a distance of fifteen feet; that at the shallowest place there was about four inches of dirt and at the highest place about eight feet of dirt; that Otis Bryant had undermined about a foot and a half or two feet about four feet above the bottom; that the dirt was very solid; that the purpose of picking it was to undermine it and then strike it on top with a sledge hammer so as to make it fall to the floor; that when the plaintiff was injured some dirt had been picked and had fallen to the floor and plaintiff was instructed by Bryant to go ahead and he, Clyde Bryant, and Reecie Singleton started in after some dirt and as plaintiff stepped down he heard some one call, "Look out," he looked up, tried to get out of the way when he was struck by a large piece of concrete that came from the top; that about two wagon loads of dirt fell and Clyde Bryant and Reecie Singleton had to dig him out; that the piece of concrete was about two feet long, about eighteen inches wide, and about five inches thick and broken irregularly; that the top of the concrete was smooth, but the bottom of the concrete where it was resting on the dirt was not; that as a result his right leg was broken close to the hip and he received other injuries.

On cross-examination he testified that he knew Otis Bryant went away with the Donnell Construction Company a number of years ago but did not know that he had become one of their foremen; that he did not know whether Otis Bryant wrecked the old Light & Ice plant that burned at Sikeston some years prior, nor did he know that Otis Bryant had the contract for setting up the smokestacks and boilers for Mr. Burnett's mill south of the Frisco station shortly prior to the accident here involved but he did know that he worked around there; that he did not know that Otis Bryant superintended some construction work for the Dillman Company at Caruthersville; that plaintiff was away with a show for some time prior to his accident; that Otis Bryant told him to go to work and Otis Bryant paid him every Saturday in cash; that when he worked for the milling company that company paid him in cash every Saturday afternoon; that after his injury he was taken to the house of Otis Bryant; that plaintiff had not heard of Otis Bryant continuing as a prize fighter for some time and he was not so engaged at the time the elevator was being wrecked; that he saw the crack in the concrete when he was down, after he was hurt, but did not see it before; that the concrete that was not undermined did not fall, nor did the concrete that was not cracked fall; that when he went in to shovel the dirt he could not see any danger about it; that during...