Behre v. Hemp & Co.

Citation191 S.W. 1038
Decision Date06 February 1917
Docket NumberNo. 14559.,14559.
CourtCourt of Appeal of Missouri (US)
PartiesBEHRE v. HEMP & CO.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

"Not to be officially published."

Action by Barney Flink against Hemp & Co. Judgment for defendant, and pending the filing of a bill of exceptions and perfection of an appeal by plaintiff he died, and the cause was revived in the name of George C. Behre, his executor, who perfected the appeal. Affirmed.

John A. Gilliam and J. Butler McCormick, both of St. Louis, for appellant. Schnurmacher & Rassieur, of St. Louis, for respondent.

REYNOLDS, P. J.

Action by plaintiff to recover damages for injuries received by falling into an elevator shaft on the premises of defendant.

At the close of the evidence for plaintiff, defendant, introducing no evidence, asked an instruction that under the pleadings and evidence plaintiff could not recover. Plaintiff thereupon took a nonsuit with leave to move to set it aside. That was overruled. Pending the filing of a bill of exceptions and perfection of an appeal by plaintiff, he died and the cause was revived in the name of his executor, who, as such, has duly perfected his appeal to our court.

The accident to plaintiff happened December 16th, 1910. By his petition plaintiff states that prior to that date defendant had entered into an arrangement with one Buel, who was engaged in the business of japanning, whereby Buel, through his servants and agents was to do certain japanning work for defendant, and for that purpose "was to send his employés to defendant's premises where said japanning work was to be done. And plaintiff states that on said 16th day of December, 1910, he was in the employment of said Buel and that as such employé he was on said date rightfully upon the premises of the defendant, on the invitation of the defendant, and engaged in the work which was being done there for the defendant under and in pursuance of the aforesaid arrangement with said Buel, and it was the duty of the defendant to furnish plaintiff with a reasonably safe place in which to do his said work, which defendant failed and neglected to do, whereby plaintiff sustained the injuries hereinafter stated."

It is further averred that at the time plaintiff was injured the hatchway on the first floor above the basement of the building was open and uncovered and in nowise guarded or protected and the premises surrounding this opening nearly dark and insufficiently lighted and dangerous, and so known to be by defendant, or by the exercise of reasonable care on its part, would have been known to it; that defendant had posted no warning of the danger of the opening or hatchway and had given none to plaintiff; that while plaintiff, on the day named, was in the premises "and engaged in his work for said John H. Buel, in doing the said work that said Buel was doing for the defendant, plaintiff, while looking for a broom to sweep up and clean up the place in which he was working, which was necessary to be done, and said broom was a material, suitable and necessary implement with which to do said cleaning," in consequence of the wrongful acts of defendant, as stated, fell into and through the hatchway to the floor below (about fourteen feet) and thereby sustained the injuries mentioned. (Italics ours.)

As a further assignment of actionable negligence, facts, which, if true, amount to a violation and disregard by defendant of section 7830, Revised Statutes 1909, in failing to properly protect and guard the opening or hatchway, are set out. On motion of defendant this was stricken out, plaintiff excepting.

The answer, after a general denial, was a plea of contributory negligence, to which plaintiff replied.

I. Learned counsel for appellant assign as error the action of the court in striking out the part of the petition which pleads section 7830.

In Glaser v. Rothschild, 221 Mo. 180, 120 S. W. 1, 22 L. R. A. (N. S.) 1045, 17 Ann. Cas. 576, our Supreme Court held that this statute has no application to any persons except employés of defendant. Obviously, plaintiff was not an employé of defendant but of Buel.

But that counsel claims that in Meenach v. Crawford (Sup.) 187 S. W. 879, loc. cit. 882, our Supreme Court has made an advance on all its former decisions and established the proposition that a provision for the safety of persons in a manufacturing establishment applies to all persons there on business. The statute under consideration in the Meenach Case was that relating to the running of automobiles and the like on the public roads and streets, and section 7830 was not before the court, nor is the decision in the Glaser Case in any manner there criticized. In our opinion, it remains as the proper construction and application of section 7830.

Counsel further argue in support of this assignment that the duty of defendant "to his employé Flink extends to all places about the premises known to the master to be used or which might, by the use of ordinary care, be so known to be used by the employés." A fatal objection to all this is that Flink was not an employé of defendant. What situation Flink, the plaintiff, occupied toward defendant and what duty the latter owed him, will presently be considered.

We hold that the trial court committed no error in striking out this paragraph of the petition.

In passing on this objection to the action of the court in striking out that paragraph of the petition, we are not deciding whether plaintiff lost the benefit of his exception to that action by replying and going to trial. It has been suggested that this followed, but as the point is neither briefed nor argued, we do not determine it one way nor the other, taking the case as presented by counsel.

II. The only other error assigned is to the action of the trial court in giving the instruction which drove plaintiff to a nonsuit. The facts as developed by the evidence are about as follows:

At the time of the accident and for sometime before that, defendant owned and occupied premises on Second Street in St. Louis, in which it had its office and carried on the business of manufacturing and selling sheet metal goods, including japanned ware. The building consisted of a basement and four floors or stories, a hatchway leading from the basement through the floors. In the latter there was placed an elevator, run and operated by hand and by means of a rope, and used exclusively for carrying freight from the basement and from floor to floor. One John H. Buel, who was a japanner, had his place of business on the opposite side of the street but diagonally across from the premises of defendant. In the rear of defendant's premises, between the wall of the main building and an ell, was an open space in which there was situated a shed, open on two or three sides. This open space fronted on an alley, sometimes referred to as Risley Street. There was a kettle or tank in this shed, in which defendant allowed Buel, who on occasion did japanning for it, to do japan work when japanning for defendant, Buel also doing some of the japanning in his own premises. When japanning was to be done in this shed and tank or kettle, the process was to dip sheets of metal in this kettle or tank, which contained a mixture of japan and benzine, and when japanned the sheets were stood upon "drip boards," to allow any excess of the mixture to run off, and which boards were placed along and outside of the tank.

The evidence discloses that there were two ways of reaching the shed. One was to go through the alley and enter the yard in which the shed referred to was situated, by a rear gate, not going through or into the main building. The other way was to enter the defendant's premises from Second Street, passing through a door opening from the sidewalk, then through a short vestibule, and through a second door into the shipping room. Immediately opposite the last mentioned door was a long aisle or passageway, against the north side of defendant's shipping room, and leading directly eastward about one hundred feet. At the end of the passageway was a fire-wall which separated the office and shipping room, or front of defendant's premises, from the factory proper. These passageways were not made by regular partitions but by piling articles along the floor space in such a manner as to allow passage between them. When the wall at the end of the north passageway was reached the aisle, as it is called, turned some thirty feet to the south to a door in the fire-wall which led eastwardly into the factory. Passing through the factory one could also reach the yard or areaway by means of a door in the north wall of the factory building.

The elevator hatchway was near the middle of the building, but not directly on any of the passageways. In going through the building to the yard in which the shed was located one did not necessarily pass closer than 10 feet by one way, or 20 feet by another, to the hatchway.

The testimony also showed that the elevator opening on each floor was provided with wooden gates or barriers which operated automatically, moving with the elevator. When the elevator was even with any floor, the gates were up toward the ceiling of that floor; but when the elevator moved up or down the gates moved correspondingly; so that the open hatchway, when the elevator was not in place on the floor, was protected by the gates. The evidence offered by plaintiff also showed that these gates were inspected from time to time and that they were never known to be out of order, or to fail to operate automatically. There were a number of artificial lights near the opening on the first floor, but the evidence tends to show that the immediate premises were dark and not well lighted on the day of the accident. On the evening before the accident plaintiff applied for work to Buel, who told him he could go to to work at dipping in the shed the...

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