Bujalo v. St Louis Basket & Box Co.

• Citation: 227 S.W. 844
• Decision Date: 08 February 1921
• Docket Number: No. 17085.,17085.
• Court: Court of Appeal of Missouri (US)
• Parties: BUJALO v. ST LOUIS BASKET & BOX CO.

227 S.W. 844

BUJALO v. ST LOUIS BASKET & BOX CO.

No. 17085.

St. Louis Court of Appeals. Missouri.

February 8, 1921.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Julia Bujalo against the St. Louis Basket & Box Company. From judgment for plaintiff, defendant appeals. Reversed, and cause remanded.

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

W. H. Douglass, of St. Louis, for respondent.

BECKER, J.

Plaintiff sued for the alleged negligent killing of her husband and recovered judgment below against the defendant corporation in the sum of 85,000. in due course defendant brings this appeal.

In the conduct of its business the defendant prepares logs for sawing same into veneer. All logs intended to be veneered have to be steamed. For that purpose defendant had four vats arranged in pairs, each vat being approximately 18 feet long, 8 feet wide, and 8 to 8 feet deep. These vats were made of wood, and the sides thereof extended above the surrounding floor approximately 20 inches, or to a height that would strike a man about the knees. Water was put into these vats to a depth of 3 or 4 feet, and then logs of wood of various sizes would be placed therein; the vats were then covered with heavy boards, and steam turned into the vats, raising the water to boiling point. It was customary, in the preparation of the logs, to keep them in the boiling water in the vats overnight. When the logs were sufficiently steamed, the boards were removed from the top of the vats so that the logs could be taken out.

There was a derrick at the north end of the east pair of vats in question, stationed about 20 inches from the vats and about opposite a partition which ran between the two vats, making the derrick available for use in each of the vats for the purpose of lifting out the logs, which was done by means of sharp-pointed hooks or tongs attached to a rope suspended from the derrick. By use of these tongs the log could be grappled and then raised by a windlass and pulley until the log was high enough to clear the north wall of the vat. The rope holding these hooks or tongs was not long enough to reach the logs if they were on the bottom of the vat, or if they were at the center or south end of the vat; therefore defendant furnished the employes with pike poles with which the logs in the center or south end of the vat could be speared, and then pushed or pulled over toward the north end of the tank where the log would be raised from the bottom of the vat in the water, so that the hooks or tongs connected with the derrick could be attached to the log.

When the logs were lifted out of the vats water and bark would fall from the logs onto the floor immediately next to the vat at the north end, where the employes had to stand while taking out the logs, causing the floor to become wet and slippery. Often when the boards were removed from the vats preparatory to removing the logs therein, the steam rising from the vats would be very dense, affecting the visibility, and by reason of the condensation of the steam moisture was formed which settled on the floor and elsewhere. There were no rails or other protection around the vats to guard the persons, employed in and about the work of removing the logs from the vat, from slipping or falling into the vat.

Plaintiff's husband, on the 10th day of April, 1919, was in the employ of the defendant company, and engaged in taking logs out of one of the vats. On the morning of the day stated his cries were heard and he was found standing in the vat near the north and thereof, in the boiling water to a depth up to his waist line. He was removed from the vat by fellow employes, and later died from his injuries.

The two assignments of negligence set out in plaintiff's petition upon which the case was submitted to the jury were: First. That the defendant negligently failed to furnish deceased a reasonably safe place to work, in that it failed to provide railings to guard deceased from falling into the vat, or any other support for the deceased to hold to while moving logs in the vat. Second. That the defendant negligently failed to provide a rope or cable long enough for the work so that the hooks attached thereto could be placed upon the logs in any place in the vat, and thereby avoid the necessity of lifting the logs from the bottom of the vat or moving them so that the hooks of the derrick could be fastened to the logs. The answer was a general denial.

1. We are met with the question as to whether or not plaintiff made out a case for the jury. From a close examination of the record we are satisfied that no error was committed by the learned trial court in overruling plaintiff's demurrer, offered at the close of plaintiff's case and again at the close of the entire case. In arriving at this conclusion we have viewed the testimony for the purpose of this question, as we must, in the light most favorable to plaintiff, and have given plaintiff the benefit of all reasonable inferences that might be drawn therefrom.

There was no eyewitness to the accident, and the first that was known of it was when other employes heard the deceased scream. When they got to him he was standing in the boiling water in the north end of the vat, at which he had been working for an hour or more removing logs. His pike pole was found sticking in a log at the north end of the vat in a position as used when lifting logs in the vat in order to catch hold of them with the hooks on the derrick. The vat was about half full of water, and was full of logs; only about five of the logs having been taken out of the vat at the time of the accident.

There was testimony by witnesses who were working near Bujalo, the deceased, that just prior to the time he was taken from the vat they were unable to see him on account of dense steam arising from the vat at which he was at work, and that when there is a dense steam the floor surrounding the vats is usually slippery. Furthermore, that when the logs are lifted out of the vat water usually drips from the logs onto the floor where the men removing the logs have to work; that the rope that was used in connection with the derrick for pulling out logs from the vats was not long enough to reach to the bottom of the vat, so that it was necessary to pull the logs to the north end of the vat and raise the logs somewhat so as to be able to place the hooks or tongs attached to the rope connected with the derrick onto the logs for raising same out of the vat. There also was testimony to the effect that the men working about these vats were in danger of falling into the same "if you would slip."

It is conceded that at the time that Bujalo was hurt there was no railing or other safeguard about the vat to protect the employes working thereabout from falling into the vat, except that the wall of the vat extended some 20 inches, or about to a man's knees, above the floor abutting the vat. Plaintiff introduced testimony tending to prove that...