Bennett v. Harry Benjamin Equipment Co.

• Decision Date: 03 June 1919
• Docket Number: No. 16234.,16234.
• Citation: 214 S.W. 244
• Parties: BENNETT v. HARRY BENJAMIN EQUIPMENT CO.
• Court: Missouri Court of Appeals

214 S.W. 244

BENNETT v. HARRY BENJAMIN EQUIPMENT CO.

No. 16234.

St. Louis Court of Appeals. Missouri.

June 3, 1919.

Appeal from St. Louis Circuit Court; Hon. Samuel Rosenfeld, Judge.

"Not to be officially published."

Action by Reuben A. Bennett against the Harry Benjamin Equipment Company. `Judgment for plaintiff, and defendant appeals. Reversed.

Watts, Gentry & Lee and E. H. Robinson, all of St. Louis, for appellant.

Edw. Foristel and John T. Manning, both of St. Louis, for respondent.

ALLEN, J.

This is an action to recover damages for personal injuries sustained by plaintiff while employed by the defendant, a corporation, in a junkyard operated by it in the city of St. Louis. The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $3,000, and the defendant prosecutes the appeal.

The petition alleges that on July 21, 1917, defendant was engaged in operating a junkyard in the city of St. Louis, wherein plaintiff was employed by defendant as a laborer; that on said day plaintiff and his colaborers were directed by defendant to take a large and heavy piece of boiler iron, about 9 feet long and 4 feet wide, from the ground or track where it was then lying and throw it upon a large pile of scrap iron in said yard; that when plaintiff and his colaborers threw said piece of boiler iron on the pile of scrap iron, as directed by defendant, the boiler iron, being rounded on one side, slid or fell from the pile with great force and violence upon and against plaintiff, injuring him, as set out in the petition.

It is further alleged that the particular acts of negligence on the part of defendant which directly caused plaintiff's said injuries were as follows:

First, that defendant negligently failed to furnish plaintiff with a reasonably safe place in which to do his work, "in that defendant knew, or by the exercise of ordinary care on its part could have known, that said piece of boiler iron, if thrown upon said pile of scrap iron as directed by defendant, would likely fall from said pile and injure plaintiff and his colaborers," but nevertheless defendant negligently directed plaintiff to work in said place when defendant knew, or by the exercise of ordinary care could have known, "that the act of throwing said piece of boiler iron onto said pile of scrap iron would render the place where plaintiff was working dangerous and unsafe."

Second, that defendant negligently failed to warn plaintiff of his dangerous position and of the danger of said piece of boiler iron falling when thrown upon said pile, "so that plaintiff might have an opportunity to reach a place of safety," but permitted plaintiff "to remain in said place until he was injured as aforesaid."

The answer consists of a general denial, together with a plea to the effect that if plaintiff was injured it was the result of his own negligence and that of his fellow-servants, and a plea of assumption of risk.

The evidence consists of the testimony of plaintiff and that of his physician. Plaintiff's testimony tends to show the following:

Prior to his injury plaintiff had worked for defendant, in its junkyard in the city of St. Louis, for eight or nine months. In this yard various kinds of scrap iron were handled, including "boiler iron," or pieces of old boilers. On the day of his injury, viz. July 21, 1917, plaintiff and other laborers unloaded some scrap iron from a railway car in defendant's yard, which was situated on the west side of Minnesota avenue, a street extending north and south. Among this scrap iron was a piece of boiler iron, of the size and character mentioned in the petition, which was then lying upon the ground, with the convex surface down and the edges turned upward, at a point perhaps 20 or 25 feet west of the sidewalk on the west side of Minnesota avenue. One Benjamin, defendant's superintendent, told plaintiff and some fellow workmen to take this boiler iron and throw it upon a certain pile of scrap iron in the yard. Plaintiff and six colaborers undertook to do this. They carried the boiler iron east to the sidewalk, then turned south, and proceeded a distance of about 15 or 20 feet, passing a pile of scrap iron about 4 feet high. Immediately south of that pile was a narrow aisle, extending east and west; and immediately south of this aisle was the pile upon which plaintiff and his fellow workmen had been directed to throw the boiler iron. This last-mentioned pile was but 18 inches in height. As the men proceeded with their burden toward that pile, the boiler iron, about 9 feet in length, extended north and south. Plaintiff and another workman were supporting the north end thereof, while others were holding it on the east and at its south end. Plaintiff, thus assisting in carrying the load, entered the narrow aisle mentioned; and when the boiler iron was thrown or dropped upon this low...