Bodenmueller v. Columbia Box Co.

• Decision Date: 07 February 1922
• Docket Number: No. 16952.,16952.
• Citation: 237 S.W. 879
• Parties: BODENMUELLER v. COLUMBIA BOX CO.
• Court: Missouri Court of Appeals

237 S.W. 879

BODENMUELLER v. COLUMBIA BOX CO.

No. 16952.

St. Louis Court of Appeals. Missouri.

February 7, 1922.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by Carl A. Bodenmueller against Columbia Box Company. From judgment for plaintiff, defendant appeals. Reversed and remanded.

A. & J. F. Lee and James A. Waechter, all of St. Louis, for appellant.

Edward J. Brennan and C. M. Sandoval, both of St. Louis, for respondent.

NIPPER, C.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff while working for defendant in its factory at Nineteenth and North Market streets, in the city of St. Louis. It is alleged that defendant negligently failed to furnish plaintiff a safe place in which to work, and negligently failed to keep said place safe. Plaintiff was a laborer, and on the day of the alleged injury was carrying boards from a saw to a truck in defendant's premises. He was carrying 50 pieces of boards in his arms. The length of the boards was the length of the end of a cigar box, and they were about one foot in height. These boards would be carried by plaintiff away from the saw, across a hallway, and then between two tables, where two saws were being operated, and to a truck beyond these tables, and loaded on said truck. Plaintiff testified that when he passed between the two tables he had to lift the bundle of boards he carried in his arms so as not to strike the saws or lumber on these tables, and in doing so the bundle he was carrying would obstruct his vision so that he could not see where he was walking. He stated this aisle or passageway between the two tables was 20 or 22 inches wide. The evidence of the defendant's witnesses was that the distance was 5 feet. Along the passageway where plaintiff was required to go was a trapdoor about 18 inches wide and 36 inches long. This trapdoor was usually closed. On the ay of the accident plaintiff had walked over the trapdoor several times before he was injured. He returned from the truck on which he was placing the boards to the saw for another load, and after being there for two or three minutes, he started back to the truck, and in returning with his arms full of boards he did not observe that the trapdoor had been opened during the two or three minutes he had been away from the truck, and he fell into the opening and was injured. No point being made as to the amount of the verdict, it is unnecessary to set out the testimony with respect to plaintiff's injuries. Plaintiff stated he did not know who opened the door, hut that when he fell in the opening he saw the operator of one of the saws in there. It appears from the evidence of defendant's foreman that they have what they call "belt men," who look after the belts on the machinery which operates the saws, but if the belt men cannot be found the operators themselves do this work. Plaintiff also stated that the operator went down through the trapdoor to adjust the belt.

If we deem a further recital of the facts necessary to a proper determination and understanding of this case, we will refer to them in the course"of the opinion.

The defendant offered a demurrer at the close of the plaintiff's case and also at the close of the whole case, both of which were overruled.

The court, at the request of plaintiff, gave and read to the jury the following instructions, numbered 1 and 2, which purported to cover the whole case and direct a verdict for plaintiff:

"(1) The court instructs the jury that the duty of the defendant to furnish plaintiff a reasonably safe place in which to perform his work, regard being had to the nature and character of his employment and the kind of work in which he was engaged, and the duty of defendant to keep its aisles and passageways in a reasonably safe condition so that plaintiff could perform his work about them in reasonable safety, regard being had, as above stated, to the nature of his employment, cannot be delegated to another with the effect of relieving defendant from liability for the neglect or negligence of the person to whom such duty is delegated, and if you believe from the evidence that on or about the 5th day of September, 1917, plaintiff was employed by defendant at defendant's factory at Nineteenth and North Market streets, St. Louis, Mo., and on said day and at said place was engaged in carrying boards from a crosscut saw to a truck, and in so doing had to pass along an aisle and passageway and over a trapdoor and if you further find from the evidence that between the time when plaintiff last passed over said trapdoor on his way from the truck to the crosscut saw and the time when he was returning from the crosscut saw to the truck with his arms full of boards this trapdoor had been opened by defendant, its agents, servants, and employees in the ordinary and regular course of their employment, without plaintiff's knowledge, then the neglect or negligence of the said person was the neglect or negligence of the defendant, and if you find from the evidence that the injury of plaintiff, if any you find, was proximately caused by such neglect or negligence of said person, then you will find in favor of the plaintiff, if you further find that plaintiff was in the exercise of ordinary care for his own safety.

"(2) The court instructs the jury that it was the duty of the defendant to furnish plaintiff a reasonably safe place in which to perform his work, regard being had to the nature and character of his employment and the kind of work in which he was engaged, and it was also the duty of the defendant to keep the aisles and passageways through which plaintiff had to pass in the course of his employment in a reasonably safe condition, so that plaintiff could perform his labor about them in reasonable safety, regard being had, as above stated, to the nature of his employment. And if you...