Boten ex rel. Boten v. The Sheffield Ice Company
| Decision Date | 18 April 1914 |
| Citation | 166 S.W. 883,180 Mo.App. 96 |
| Parties | FRANK BOTEN, by his Next Friend, A. BOTEN, Respondent, v. THE SHEFFIELD ICE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James E. Goodrich, Judge.
AFFIRMED.
Judgment affirmed.
Pierre R. Porter for appellant.
(1) The demurrer to the evidence should have been sustained. Bloomfield v. Wooster Const. Co., 118 Mo.App. 254; Henson v. Packing Co., 113 Mo.App. 618; Meehan v. Railroad, 114 Mo.App. 396; Ziegenmeyer v Goetz, 113 Mo.App. 330; Kane v. Railroad, 112 Mo.App. 650; Henry v. O'Brien Boiler Co., 151 Mo.App. 591. (2) The court erred in overruling defendant's motions to discharge the jury. Hollenbeck v. McCord, 152 Mo.App. 254; Gore v. Brockman, 138 Mo.App. 231; Trent v. Lechtman Printing Co., 141 Mo.App. 437; Volkmann v. Brossman, 129 Ill.App. 182; George A. Fuller v. Darragh, 101 Ill.App. 664; Manigold v. Black River Traction Co., 80 N.Y.S. 861; Herrin v. Daly, 80 Miss. 340; Iverson v. McDonnell 36 Wash. 73.
Atwood & Hill and W. E. Pepperell for respondent.
(1) The demurrer to the evidence was properly overruled. The evidence showed that the defendant sent plaintiff into an unsafe place to work, knowing that it was unsafe, and assuring plaintiff that it was perfectly safe. Plaintiff did not know of said unsafe condition, and relying upon the positive assurance of safety of defendant, plaintiff took his position of danger on top of the roof which afterwards fell. Under such evidence defendant is liable. Burkard v. Leschen & Sons Rope Co., 217 Mo. 466; Sullivan v. Railroad, 107 Mo 66; Dodge v. Coal & Coke Co., 115 Mo.App. 501; Carter v. Baldwin, 107 Mo.App. 217; Swearingen v. Mining Co., 212 Mo. 524; Sampson v. Railroad, 156 Mo.App. 419; Hoover v. Coal & Min. Co., 160 Mo.App. 326; Depuy v. Railroad, 110 Mo.App. 110; Charlton v. Railroad, 200 Mo. 413. (2) The court properly refused to discharge the jury. Saller v. Friedman Bros. Shoe Co., 130 Mo.App. 712, 109 S.W. 794; Meyer v. Gundlach-Nelson Mfg. Co., 67 Mo.App. 389.
Plaintiff was assisting in taking down an ice house belonging to defendant. During the progress of the work the place whereon he stood broke on account of its rotten condition, and plaintiff fell to the ground receiving a broken hip and other injuries. The suit is for damages received by the fall. He recovered in the trial court and defendant has appealed.
The building was about 100 feet square and divided into five rooms, each 20 feet in width running the full length of the structure. Over each room was a gable roof sloping both ways from the roof ridge down to the valleys which extended lengthwise and above the partitions separating that room from the others. These valleys were about 32 feet from the ground. The roof of each room was supported by rafters placed parallel to and at regular intervals from each other and extending from the comb or roof-ridge down to the valley. Sheeting was nailed across the rafters and on the sheeting were the shingles. The feet of these rafters rested on the plate which was a timber of some width lying along and on the top of the wall of each room and was supported by posts in the walls set in the ground at intervals. The valley, therefore, lay along and upon the top of this plate. Over this plate was placed tarpaper and gravel forming the trough of the valley and preventing water from running through into the building. The condition of the plate, therefore, could not be observed by one standing on top in the valley because of this tarpaper and other roofing material, but the plate and its condition were easily observable from the inside of the room. This is important because plaintiff's fall was caused by the breaking of the plate, which was decayed, and plaintiff's complaint is that defendant knew of its rotten condition (which was unknown to plaintiff), and negligently assured plaintiff that the place where he was working was safe, and plaintiff relied upon that assurance and was injured by reason of the carelessness and negligence of defendant in directing plaintiff to work in a dangerous and unsafe place with an assurance that it was safe, when plaintiff did not know and had no reasonable means of knowing that it was unsafe. The answer was a general denial, a plea of contributory negligence, a further plea that the injury was caused by the negligence of plaintiff's fellow servants, and lastly a plea of assumption of risk.
Plaintiff had been employed about four days but during that time had not been in the building and had not been in it for more than a year. On the day of the accident plaintiff was helping to tear the sheeting from the rafters over the east half of room No. 4 which was next to the outside room of the building on the east. He was standing in the valley between the roofs of rooms Nos. 4 and 5 and on the plate above mentioned. The sheeting was removed by beginning next to the roof ridge and working down to the valley or to what would have been the eaves of the room had it been standing alone. The sheeting had been removed down far enough to enable plaintiff to stand in the valley between rooms four and five. While thus standing and engaged in taking the sheeting from the rafters as aforesaid the plate broke and threw him to the ground.
Defendant insists that its demurrer should have been sustained. So far as contributory negligence and the plea that the accident was caused by plaintiff's fellow servants are concerned, they are clearly not in the case, at least not at this stage. The house, though old, was not so weak or dilapidated as to be obviously about to fall. The outside walls looked safe and the evidence was the building was being taken down piece by piece for further use as lumber. Unless the building was so obviously dangerous that a reasonable man would not have attempted to go upon it to take it down, plaintiff cannot be charged with contributory negligence. Plaintiff's fall was brought about, not by a collapse of the building, but by the breaking of the plate on account of a local defect hidden from him. He was not even aware of the danger to which he was subject by reason of the defect. And as to the fellow servant doctrine, it cannot of course apply since no act of a fellow servant caused the injury.
As to the plea of assumption of risk, certain important elements in the case operate to take it out of the rule that a servant assumes the ordinary risks inherent in the nature of the business in which he is engaged, and these elements must be carefully borne in mind. (1) Plaintiff was only 18 years of age, reared on a farm, with no prior experience in wrecking buildings. Defendant's president, in charge of the work, was a man of twenty years experience in that kind of work. He was an expert. (2) Plaintiff was never in a position where he could observe the plate or its condition. He had never seen it and did not know it had rotted. But defendant's president knew it and had known it for a long time. (3) Knowing of its defective condition, he not only failed to take any steps to remedy it, but he assured plaintiff in the most positive manner that the place was safe. (4) Plaintiff, unaware of the defect, relied upon the assurance of safety and was injured. Under such circumstances the courts have repeatedly held the master is liable. [Burkard v. Rope Co., 217 Mo. 466, 117 S.W. 35; Swearingen v. Mining Co., 212 Mo. 524, 111 S.W. 545; Carter v. Baldwin, 107 Mo.App. 217; Dodge v. Mfrs. Coal & Coke Co., 115 Mo.App. 501.] The fact that plaintiff was engaged in tearing down a building and therefore was engaged in a more or less hazardous undertaking, can make no difference in this case. The danger to plaintiff arose not from the general liability of the building to fall, but from a defective condition at one place known to defendant and unknown to plaintiff; and defendant, without remedying said defect, assured plaintiff it was safe. With that knowledge, it was defendant's duty to furnish plaintiff with a place as reasonably safe as the nature of the work would permit. [Dayharsh v. Railroad, 103 Mo. 570; Carter v. Baldwin, 107 Mo.App. 217.] And by assuring plaintiff it was safe, the case was no longer in the domain of assumption of risk as a matter of law. [Adolph v. Columbia Baking Co., 100 Mo.App. 199, l. c. 208.] The case was, therefore, properly one for the jury. [Hoover v. Western Coal & Mining Co., 160 Mo.App. 326, 142 S.W. 465.]
We cannot agree with defendant that the statements made and repeatedly given to plaintiff were mere expressions of opinion and did not amount to an assurance of safety. When plaintiff first went to work on the building defendant's president, on the ground and in charge of the work, told the employees, including plaintiff, that the building was perfectly safe. Some of the boys were apprehensive about going upon the building and the president said in plaintiff's presence and hearing: "Boys, there ain't a bit of danger in the world; go right on up; I will go up and work with you. Q. Tell the exact language he used and all he said. A. He said, "The building ain't a bit dangerous; you needn't be scared about going high." During the progress of the work the president again said: On cross-examination plaintiff was asked as to what the president said to him and this occurred:
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