Boten v. Sheffield Ice Co.

• Decision Date: 06 April 1914
• Docket Number: No. 10,971.,10,971.
• Citation: 180 Mo. App. 96,166 S.W. 883
• Parties: BOTEN v. SHEFFIELD ICE CO.
• Court: Missouri Court of Appeals

166 S.W. 883

180 Mo. App. 96

BOTEN v. SHEFFIELD ICE CO.

No. 10,971.

Kansas City Court of Appeals. Missouri.

April 6, 1914.

Rehearing Denied May 18, 1914.

1. MASTER AND SERVANT (§ 235)—LIABILITY FOR INJURIES—CONTRIBUTORY NEGLIGENCE.

Where a building which was being taken down, though old, was not so weak or dilapidated as to be obviously about to fall, and the outside walls looked safe, an employé was not chargeable with contributory negligence defeating a recovery for injuries caused by the breaking of the plate upon which the rafters rested on account of a local defect hidden from him.

2. MASTER AND SERVANT (§ 218)—LIABILITY FOR INJURIES—ASSUMPTION OF RISK.

Where an employé 18 years old, reared on a farm, and with no prior experience in wrecking buildings, and who was never in a position to observe the condition of a plate on which the rafters rested, and did not know that it had rotted, was assured by his employer's president, who was an expert of experience in that kind of work, and who knew the condition of the plate, but failed to take any steps to remedy it, that the place was safe, and, in reliance upon such assurance, went upon the plate and was injured by the breaking thereof, he did not assume the risk, and the employer was liable.

3. MASTER AND SERVANT (§ 107)—LIABILITY FOR INJURIES—UNSAFE PLACE TO WORK.

Though employés were engaged in the more or less hazardous undertaking of tearing down a building, it was the employer's duty to furnish them with a place as reasonably safe as the nature of the work would permit.

4. MASTER AND SERVANT (§ 288)—ACTIONS FOR INJURIES—QUESTIONS FOR JURY.

Where an employer assured an employé that a place was safe, it was a question for the jury whether the employé assumed the risk of injury from the unsafe condition of such place.

5. MASTER AND SERVANT (§ 278)—ACTIONS FOR INJURIES—SUFFICIENCY OF EVIDENCE.

In an employé's action for injuries due to the breaking of the plate upon which the rafters of a building which was being taken down rested, evidence held to show that the statements of the employer's president as to the safety of the roof were not the expression of a mere opinion, nor so general as not to apply to such plate.

6. MASTER AND SERVANT (§ 125)—LIABILITY FOR INJURIES—ASSUMPTION OF RISK.

That an interval of time elapsed between an employer's assurance that a place was safe and an injury due to its unsafe condition did not defeat the employer's liability, where the conditions had not changed in the meantime.

7. MASTER AND SERVANT (§ 235)—LIABILITY FOR INJURIES—ASSUMPTION OF RISK.

Where an employé who did not know of a dangerous condition was assured by the employer, who did know thereof, that the place was safe, he had a right to rely thereon without making an inspection, such as would have discovered the defective condition.

8. TRIAL (§ 108½)—MISCONDUCT OF COUNSEL —EXAMINATION OF JURORS.

Where, in an employé's action for injuries, an indemnity company was interested in the outcome of the case, but the particular company was unknown to plaintiff's counsel, questions asked the jurors on their voir dire as to their relations with any liability insurance company were not ground for discharging the jury; it not appearing that they were asked in bad faith.

9. MASTER AND SERVANT (§ 268)—ACTIONS FOR INJURIES—EVIDENCE—RELATION OF PARTIES.

In an employé's action for injuries, where defendant denied that the work in which the employé was engaged was being done by it, claiming that it was being done by a third person through defendant's president, evidence that defendant took out insurance against liability for injuries to the employés was admissible to show that defendant was doing the work.

10. TRIAL (§ 108½)—MISCONDUCT OF COUNSEL —REFERENCE TO INSURANCE.

Where, in an employé's action for injuries, evidence that defendant took out liability insurance was admissible to contradict its contention that a third party was doing the work, the asking of questions relative to the taking out of such insurance was not ground for discharging the jury, though prejudicial to defendant.

11. DAMAGES (§ 132)—EXCESSIVENESS—PERSONAL INJURIES.

Plaintiff, a stout healthy boy 18 years old, sustained injuries by which his hip was broken, and he was rendered unconscious most of the time for a week, and was in bed for 5 weeks. His kidneys were injured, and they and his bowels passed blood. His weight decreased from 142½ to 129 pounds. He was nervous and restless, and able to do only light work. Held, that a verdict for $6,000, approved by the trial judge, was not excessive.

Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge.

Action by Frank Boten, by his next friend, A. Boten, against the Sheffield Ice Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Pierre R. Porter, of Kansas City, for appellant. Atwood & Hill and W. E. Pepperell, all of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff was assisting in taking down an icehouse 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 tar paper 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 tar paper 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 4 and 5. 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 20 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...