Bowman v. Kansas City Electric Light Co.

• Decision Date: 07 April 1919
• Docket Number: No. 12690.,12690.
• Parties: BOWMAN v. KANSAS CITY ELECTRIC LIGHT CO.
• Court: Missouri Court of Appeals

213 S.W. 161

BOWMAN v. KANSAS CITY ELECTRIC LIGHT CO.

No. 12690.

Kansas City Court of Appeals. Missouri.

April 7, 1919.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Minard H. Bowman against the Kansas City Electric Light Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas, of Kansas City for appellant.

Hadley, Cooper & Neel, and J. S. Bassett, all of Kansas City, for respondent.

THIMBLE, J.

Plaintiff was employed in, and had charge of, defendant's pole yard, where various kinds of work was done on poles in fitting and preparing them for use. A portion of this work was to take each of certain old, long, and heavy poles, and, after sawing off the end thereof which had decayed, where it had been in contact with the earth, to shave down and paint the rest of the pole, so as to make it a smooth, sound, though shorter, pole for service where that kind of a pole could be used. The poles that were to be thus sawed off, dressed, and painted were 40 or more feet in length, 16 to 18 inches in diameter at the butt end, and 8 or 9 inches in diameter at the top, and weighed somewhere in the neighborhood of 1,500 pounds each. In order to do this work, the pole was placed on two wooden "horses" about 26 inches high, one of them at the small end of the pole, and the other some 7 or 8 feet from the butt end, so as to allow the decayed portion to project beyond the horse and thus be easily sawed off. To get the pole on these horses, a skid or smooth piece of timber was leaned against each horse, so as to form an incline from the ground to the top of the horses, and the pole was then rolled on the ground to the foot of the skids, and then rolled up the incline to and upon the horses. The usual and ordinary method of doing this was for two or more men to roll the pole up the incline by means of "cant hooks," and in this way a man would be at each end of the pole and at or near the skid, to prevent the pole from rolling or slipping back when a new or fresh hold was attempted to be taken on the pole by the other man with his cant hook. According to plaintiff's evidence, this work of getting these heavy poles onto the horses was a job for two or more men, and up to about 10 days before the accident complained of in this case there had been two or more men employed at this work; but at this time all the men except plaintiff were taken from the yard by the defendant's assistant superintendent. For 10 days thereafter plaintiff continued at work in the yard making pole tops, which could easily be done by one man.

On the day before the accident, Lane, the assistant superintendent, who, while not staying constantly in the yard, was nevertheless over plaintiff, and was frequently in the yard, familiar with the character of the poles, and the work to be done on them, and the method of doing it, and gave the men instructions how to do their work, ordered plaintiff to take up the work of sawing off, dressing down, and painting some long, heavy old poles that were in the yard. The plaintiff told him he thought he should have help to do that work, but the superintendent told plaintiff he had received orders to cut down expenses, and that plaintiff would have to get along as best he could, assuring him that "you can handle those old poles all right by yourself," and plaintiff said he would do the best he could.

Plaintiff immediately began the work as directed, and on that day rolled several poles up on the horses and sawed them off, and dressed and painted them as required, and continued this work the next day. After having rolled up and dressed several poles on this second day, plaintiff attempted to roll a large and heavy pole up the skids. He was standing behind the pole, not far from the skid at the butt end, and between the two skids. After rolling the pole as far as he could with that hold of the cant hook, he would put his body or leg against the pole to hold it, while he caught a fresh hold with his hook. He had the pole nearly on the horses, when the small end of the pole suddenly slipped and slid down the skid to the ground, and when it struck the ground the jar caused the skids to fall down, and the heavy pole threw plaintiff backward; the pole falling across his groin, breaking the innominate bone, and very seriously crippling him. He brought this suit for damages, and recovered a verdict and judgment for $5,000, from which the defendant has appealed.

The petition alleged that during the month of December, 1914, plaintiff was employed by defendant in its pole yard; that the work consisted in preparing electric light poles for use, and required the lifting of very heavy poles and the services of several men; that prior to December 5, 1914, plaintiff had been assisted in his work by several men, but shortly before said date defendant, acting through its superintendent having supervision over said yards, negligently deprived him of all help in said work; that although defendant, its superintendent and vice principal, knew, or by the exercise of ordinary care could have known, that plaintiff could not, with reasonable safety to himself, perform said work alone, yet it, through its said superintendent, directed him so to do; that, acting under instructions of the superintendent in said yard, plaintiff did, on December 15, 1914, attempt to do said work alone; that while lifting a pole on said date said pole fell upon him, by reason of defendant's negligent failure to furnish him sufficient men to assist him in said work as aforesaid; that he was injured in certain specified particulars, whereby he is totally disabled; and that his injuries were directly caused by defendant's negligent failure to furnish him sufficient men to assist him in his work.

The answer denied generally, and then asserted that if plaintiff received any injuries they were caused by his own negligence; that he knew, or by ordinary care could have known, the size and weight of all poles, and whether it was safe for him to undertake to handle the pole in the manner stated in the petition; that by the exercise of ordinary care he could have handled said pole, and could have constructed and used any appliances or means for raising, moving, or holding said pole in such manner that it could not and would not have fallen upon him; that plaintiff knew the size and weight of the pole mentioned in the petition, and knew, or by ordinary care could have known, whether it was safe to undertake to handle said pole alone, and whether the manner in which he was attempting to handle the pole was safe or not; that, knowing said facts, and in handling said pole in the manner in which he did handle it, he assumed all risk of danger to himself.

It is urged that the petition stated no cause of action. The synopsis of the allegations o the petition hereinabove set out is almost in the language of the petition itself, and from this it will be seen that the petition did not set out the facts showing the manner in which poles were raised, nor the manner in which plaintiff attempted to lift the pole in question, nor in what way the pole came to fall, nor how the assistance of additional help would have prevented it. Doubtless an expert and finished pleading would have set out these facts. But the defendant made no attack upon the petition, nor sought to have it made more definite and certain, but answered that plaintiff, in handling the pole in the manner he did, assumed the risk, thus implying that the defendant was well aware of the manner in which the work was done and the way in which the accident occurred, and needed no more definite statement concerning them.

Stated in compact form, the petition alleged that plaintiff was employed in defendant's pole yard; that he was required to lift heavy poles, for which there should have been several men; that several men had been furnished to do the work before, but shortly before the occurrence defendant had negligently deprived plaintiff of all help, and the superintendent, knowing the situation, ordered plaintiff to do the work alone; that he attempted to do so, but, because of defendant's negligent failure to furnish sufficient men to lift these poles, one of them fell upon and injured him. In short, the petition contained all the ultimate facts of a good cause of action. Levecke v. Curtis, etc., Mfg. Co., 193 S. W. 985; Melly v. St. Louis, etc., R. Co., 215 Mo. 567, 114 S. W. 1013; Thorpe v. Missouri Pacific R. Co., 89 Mo. 650, 654, 2 S. W. 3, 58 Am. Rep. 120; Jackson v. Old...