Baxter v. Campbell Lumber Company

• Decision Date: 12 December 1914
• Parties: GEORGE W. BAXTER, Respondent, v. CAMPBELL LUMBER COMPANY, Appellant
• Court: Missouri Court of Appeals

171 S.W. 955

186 Mo.App. 352

GEORGE W. BAXTER, Respondent, v. CAMPBELL LUMBER COMPANY, Appellant

Court of Appeals of Missouri, Springfield

December 12, 1914

Appeal from Dunklin County Circuit Court.--Hon. W. S. C. Walker Judge.

AFFIRMED.

STATEMENT.--The plaintiff sues for personal injuries received while working as a common laborer at defendant's sawmill. At the time of his injury he was one of a gang of men working under the immediate direction of a "boss" or foreman in installing a new overhead conveyor or "blowpipe" used to collect and convey by suction the sawdust, shavings etc., from the saws and planers to the engine room where this refuse served as fuel. This conveyor or blowpipe was being constructed at a considerable height from the floor and was made of joints or sections of metal pipe about twelve feet long and two feet in diameter, fitted together like stove pipe, and each section weighed between two-hundred and three-hundred pounds. The sections had been brought in and laid on the floor and were being raised by a block and tackle, the pulley being fastened to the roof. The particular section being raised at the time was one containing side or "flue holes," as they are called, for the purpose of connecting smaller lateral pipes running to the separate saws and planers. These flue holes had the iron turned outward, projecting five or six inches, forming a short lateral pipe into which the lateral pipes were to be fitted. This section of large pipe was to be raised in a somewhat narrow space between the posts and the machinery. It was important that in raising it these projecting flues should not strike against the posts or machinery and be bent or indented.

This section of pipe was not directly under the pulley, being eight to ten feet back of a perpendicular line, so that the rope passing over the pulley came down to it at an angle and was fastened around the section of pipe a little back of the middle. In being raised, this would cause the section of pipe to swing forward as well as upward and the forward end to hang lower than the other.

The evidence shows that the old wooden blowpipe or conveyor had been recently taken down and sections thereof, together with shavings, sawdust and pieces of boards, left lying on the floor around and under this section of pipe. The sections of the old wooden pipe were some eighteen to twenty inches square. There were three sections of this old pipe lying there in a sort of triangle, the section of new pipe resting on one of them. One of the witnesses described it by saying that these sections of old pipe formed a sort of pit around the forward end of the new pipe being raised.

Just as the new pipe was about to start upward by reason of two men pulling down on the other end of the rope passing over the overhead pulley, the foreman in charge ordered this plaintiff to "get in there and hold that and keep them flue holes from getting mashed." The plaintiff hesitated, as not exactly understanding, and the order was repeated directly to plaintiff. He obeyed, went in and took hold of the forward end of the pipe to steady it, it swung forward and in stepping backward the plaintiff's foot slipped or tripped and he stumbled over the sections of old pipe and was thrown down, by the weight of the pipe, on his knee, dislocating it. The plaintiff testified: "When they went to pull the blowpipe up I stepped back and hit my heel against that blowpipe that was torn out and my foot slipped from under me and that throwed the whole weight of the pipe right here (Indicating) on my knee and it mashed me right down under the pipe, and I sunk down."

Another witness described it thus: "They were putting up this blowpipe, and each section of this blowpipe was something like twelve feet long, and something like twenty-three or twenty-five inches in diameter. We had a rope tied here (Indicating) something like the center of the pipe, and the rope was attached to a block up at the top, and they used the rope to pull the blowpipe up. Two men were handling the rope. The two men were Mr. Chatman and myself. We was pulling on the rope, and Mr. Baxter was supposed to have guided the pipe to keep from knocking the flue holes as we pulled it up. As we pulled it up it kindy swung around and knocked Mr. Baxter down, and he said the full weight of the pipe went on his knee. . . . He had to go into a place where there was some old blowpipe, a post, and some boards that had been planed but had not been taken away and was laying on the floor, and he didn't have room enough to step around as the pipe swayed around."

The petition sets forth the ultimate facts above stated, the order of the foreman to plaintiff to go into this place and do the work he did, and, "that owing to the rubbish and shavings and plank piled up about said joint of blowpipe, and owing to the way the pulley and rope was fastened to the said joint of blowpipe plaintiff was unable to hold the pipe without injury as aforesaid and in endeavoring to brace himself and hold said joint of pipe, and while exercising due care on his part, he fell in the manner and by the means aforesaid, thus and thereby permanently injuring his leg kneejoint and kneecap, all caused by the carelessness and negligence of the defendant company, under the order and direction of its foreman, Bud Mead, in requiring plaintiff to lift or assist in raising said joint of blowpipe in the manner and by the means as aforesaid, and in not furnishing plaintiff with a reasonably safe place to do and perform his work, and reasonably safe tools and appliances with which to do and perform the same." As is proper on defendant's appeal, the facts are stated according to the evidence favorable to plaintiff.

The answer is a general denial, with special pleas: (1) That plaintiff was already suffering from a stiff and diseased knee when he accepted employment from defendant and that his injury was within the assumed risk of, and incident to, his employment and physical condition; and (2) contributory negligence in that plaintiff voluntarily and carelessly placed himself in a position to cause his fall and injury complained of.

The errors complained of relate to (a) the refusal to sustain a demurrer to the evidence; (b) the giving of erroneous instructions; (c) the admission of improper evidence; and (d) that the verdict is excessive.

Judgment affirmed.

Fort & Zimmerman for appellant.

(1) Respondent assumed the risk of being injured, in the manner and by the means charged, when he undertook to assist in the repair work at appellant's mill. Saversnick v. Schwarzschild & Sulzberger, 125 S.W. 1192; Brandt v. K. C. Breweries Co., 141 S.W. 445; Maynard v. Railroad, 137 S.W. 59; Lowe v. Railroad, 148 S.W. 956; Smith v. Forrester Nance Box Co., 92 S.W. 394; Jones v. Pioneer Cooperage Co., 134 Mo.App. 324; Rowden v. Schoenherr-Walton Min. Co., 117 S.W. 695; Rigsby Oil Well Supply Co., 91 S.W. 460; Butz v. Murch Bros. Construction Co., 117 S.W. 636. (2) This case falls under a well defined exception to the general rule of assumption of risk, in that appellant was only doing temporary, or repair work in its mill, and trying to render an unsafe place, safe for its employees. Rigsby v. Oil Well Supply Co., 91 S.W. 466; Rowden v. Schoenherr-Walton Min. Co., 117 S.W. 695; Bennett v. Crystal Carbonate L. Co., 124 S.W. 612; Bradley v. Railroad, 39 S.W. 766; Henson v. Armour Packing Co., 88 S.W. 167. (3) The court erred in giving instruction number 1 for plaintiff which required appellant to use more than ordinary care to furnish respondent a safe place and appliances with which to work. McElhiney v. Friedman-Shelby Shoe Co., 138 S.W. 60; Henson v. Pascola Stave Co., 131 S.W. 931. (4) Instructions numbers 5, 6 and 7, given for the plaintiff, are tantamount to instructions on the defense of contributory negligence, provided they were proper declarations of law on that defense, but said instructions do not declare the law of the defense of assumption of risk. Bennett v. Crystal Carbonate Lime Co., 124 S.W. 612; Bradley v. Railroad, 39 S.W. 767.

Bradley & McKay for respondent.

(1) It is the duty of the master to see that the place and appliances in which and with which respondent was required to perform his work were in such condition that the servant could perform his duties with reasonable safety. Herdler v. Buck's Stove & Range Co., 136 Mo. 3; Sullivan v. Railroad, 107 Mo. 78; Stephens v. Railroad, 96 Mo. 212; Clark v. Iron & Foundry Co., 234 Mo 436. (2) Respondent did not assume the risk of performing the work in the manner and by the means as directed. Bradley v. Northern Cent. Coal Co., 167 Mo.App. 177; Self v. White, 155 S.W. 840; Rowden v. Milling Co., 136 Mo.App. 376. (3) When directed by the master to perform certain services, the servant has the right to presume that he will not be sent into a place of danger and the master cannot so direct his servant without assuming the consequences. Parsons v. Hammond Packing Co., 96 Mo.App. 372; Bradford v. Railroad, 136 Mo.App. 711. (4) The court will not reverse a case upon an improper instruction, unless the same is so misleading as to constitute prejudicial error, and affect substantial justice. The instructions should be taken as a whole and considered together; the ones given for plaintiff and those given for defendant, and it is not to be presumed that the jury ignored those given for defendant and considered only those given for plaintiff in determining to which of the parties the verdict should be given, but that they did their duty and considered the instructions together. Campbell v. City of Stanberry, 105 Mo.App. 64; Sonnen v. Transit Co., 102 Mo.App. 274-276; Pendergrass v. Frisco, 162 S.W. 717; Reams v. Jones D. G. Co., 99 Mo.App. 403; ...