Cain v. Humes-Deal Co.

• Citation: 49 S.W.2d 90
• Decision Date: 02 April 1932
• Docket Number: No. 29998.,29998.
• Parties: JOHN E. CAIN v. HUMES-DEAL COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

49 S.W.2d 90

JOHN E. CAIN v. HUMES-DEAL COMPANY, a Corporation, Appellant.

No. 29998.

Supreme Court of Missouri, Division One.

April 2, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. Victor Falkenhainer, Judge.

REVERSED.

Jones, Hocker, Sullivan & Angert and Willard A. McCaleb for appellant.

(1) The employee has the right to elect to sue at common law only in the event the employer fails to insure his entire liability under the act. R.S. 1929, sec. 3323. (a) The employee is not given the right to sue at common law merely because of the failure of the policy to contain the provisions prescribed by R.S. 1929, sec. 3326. (b) The Compensation Act (R.S. 1929, secs. 3323 and 3326) became as much a part of the policy issued to defendant as if its terms had been completely written therein. State ex rel. v. Allen, 302 Mo. 525; McKinney v. Ins. Co., 270 Mo. 316; Cravens v. Ins. Co., 148 Mo. 583; Christian v. Ins. Co., 143 Mo. 460; Ill. Indemnity Exchange v. Ind. Com., 124 N.E. 665; Equitable Cas. Underwriters v. Ind. Com., 153 N.E. 685; In re Cox, 114 N.E. 281; Home Petroleum Co. v. Chipman, 233 Pac. 738; Continental Cas. Co. v. Woerpel, 208 N.W. 882. (2) Even if plaintiff was entitled to prosecute this action at law, the demurrer to the evidence should have been sustained on the merits. (a) The absence of light was not the proximate cause of the injury to plaintiff. Jackson v. Gulf Elevator Co., 209 Mo. 506; Kolbow v. Laundry Co., 318 Mo. 1243; Fulwilder v. Gas, Light & Power Co., 216 Mo. 582; Koenig v. Heitz, 282 S.W. 107; Anderson v. Box Co., 103 Mo. App. 382; State ex rel. v. Cox, 310 Mo. 367. (b) The negligence, if any, producing plaintiff's injury was the act of a fellow servant. Hawk v. Lumber Co., 166 Mo. 121; Kappes v. Brown, 116 Mo. App. 154; Pulley v. Standard Oil Co., 116 S.W. 430. (c) The manner of injury to plaintiff was so remote and improbable that defendant was not required to anticipate the occurrence. Lowe v. Railroad, 265 Mo. 587; Ward v. Dry Goods Co., 248 Mo. 348; Beasley v. Linehan Transfer Co., 148 Mo. 413; Zasemowich v. Amer. Mfg. Co., 213 S.W. 799. (d) The plaintiff and his fellow servant chose a dangerous method of work when a safe method was open to them. McCarthy v. Rood Hotel Co., 144 Mo. 397; Van Bibber v. Swift & Co., 286 Mo. 317; Hunter v. Candy Co., 307 Mo. 656.

Mark D. Eagleton and Allen, Moser & Marsalek for respondent.

(1) The court properly submitted the case to the jury. There was ample evidence to show that the absence of light was the cause of respondent's injury. Wright v. Packing Co. (Mo. App.), 199 S.W. 754; Haney v. Mining Co. (Mo. App.), 205 S.W. 93; Yost v. Cement Co., 191 Mo. App. 422; Campbell v. Mills Co., 211 Mo. App. 670; Dakan v. Mercantile Co., 197 Mo. 238; Dyer v. Const. Co. (Mo. Sup.), 13 S.W. (2d) 1056; Stanley v. Railroad, 112 Mo. App. 601. (2) In ruling upon a demurrer offered at the close of the whole case the court will accept as true all evidence in the record in plaintiff's favor, and will make every inference of fact in plaintiff's favor which a jury could, with any degree of propriety, draw therefrom. In ruling upon the demurrer the court will not draw inferences of fact in defendant's favor to countervail or overthrow inferences tending to support plaintiff's cause of action. Buesching v. Gas Co., 73 Mo. 219; Gratoit v. Railroad, 116 Mo. 466. (3) Even if McDaniel, respondent's fellow servant, was guilty of negligence, his negligence was not the sole cause of the injury, but merely a concurring cause with the negligence of the appellant. State ex rel. v. Cox, 274 S.W. 376; Smith v. Greer, 216 Mo. App. 155; Ames v. Standard Oil Co. (Mo. Sup.), 233 S.W. 195. (4) The liability of a person charged with negligence does not depend on the question whether, with the exercise of reasonable prudence, he could or ought to have foreseen the very injury complained of; but he may be held liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his act or omission. Graney v. Railroad, 140 Mo. 98; Dean v. Railroad, 199 Mo. 386; Woodson v. Railroad, 224 Mo. 685. (5) Respondent was not guilty of negligence as a matter of law in selecting a dangerous method of work. This question was, at the most, one for the jury. Allen v. Railroad Co. (Mo. Sup.), 294 S.W. 80; Koerner v. Car Co., 209 Mo. 141; Mooney v. Monark G. & O. Co., 317 Mo. 1255.

HYDE, C.

This is an action for damages for personal injuries. Plaintiff was an employee of defendant and reported for work, about eight o'clock, on the morning of December 9, 1926, at the Voshon school, which was being constructed in the city of St. Louis. Defendant was the contractor building it. Plaintiff had been transferred there, two days before, from another building where he had been working for defendant. The foreman, under whom plaintiff was working that morning, sent plaintiff and a fellow employee, McDaniel, to the auditorium to clean the floor. On the two previous days plaintiff had been there he had been engaged in cleaning the upper floors of the building. The auditorium was on the first floor above the ground level. It was a large room in the center of the building, about 80 feet square, with a balcony extending 30 feet over the back part of the room. It had six windows on each side, three above the balcony and three below, each of which were about 11 feet wide. On that date glass had not been put in them. The floor, which was at that time of rough, unfinished concrete, was littered with brick bats, pieces of tile, loose nails, pieces of plaster and concrete, scraps of wood, lumber, mortar boards and other material which had fallen there during the construction of the building.

Plaintiff and McDaniel commenced scraping this material into piles for the purpose of loading it in wheelbarrows, and taking it to trucks to be hauled away. They were using square, iron shovels to do the scraping in a manner similar to sweeping with a broom. The weather was foggy and dark. Plaintiff and McDaniel testified that, when they commenced to work, on the part of the floor under the balcony, it was so dark that they could not see objects on the floor. McDaniel testified:

"Q. You say it was so dark you couldn't see anything on the floor at all? A. Well, you could see something white, but you couldn't discern nothing; you see, that was a colored floor like brick. Q. How could you see to clean up the floor? A. We did the best we could, just as the man told us. Q. You could see the brick down there? A. Couldn't see the brick unless it had some white mortar on it. Q. You couldn't see the brick unless it had some white mortar on it? A. Yes. Q. Could you see pieces of lime down there? A. Well, if the mortar — if it was spotted with mortar, you could see it probably."

Plaintiff said that he went to the foreman and asked for an extension so that they could have an electric light. The foreman said: "Go ahead; you haven't got any more than an hour or an hour and a half's work at the best on that job and you can have it done and work without a light over there." The foreman denied that anything was said about light. They went to work, scraping the rubbish into piles. After they had been working about thirty minutes, and while working near a pile into which they had scraped about three wheelbarrow loads, plaintiff stooped down to pick up a board, McDaniel, who was about four feet from him, reached out with his shovel to scrape more material into the pile. He held the shovel with the face toward him and the bottom of the shovel away from him. He brought the edge of it down on the concrete floor and struck a nail which flew up into plaintiff's right eye. The nail came with such force that it punctured the eye ball and caused the loss of sight of that eye. Before the accident plaintiff was blind in his left eye. This caused total blindness, for which he is receiving a state blind pension.

McDaniel's testimony was the only account of how plaintiff's injury occurred. Plaintiff, himself, did not see the nail nor have any knowledge of what was happening until he felt it strike his eye. As to how this happened, McDaniel testified, in part, as follows:

"Q. What was the particular task that you and this plaintiff were performing at the time of the injury? A. Well, we was cleaning up the rubbish of the floor with a shovel. Q. What was the condition of that rubbish? A. Well, it contained brick and pieces of brick and nails, pieces of tile — all kinds of junk. Q. Now, will you tell me what you know about the accident — how it happened? A. Well, the thing about it, when we were piling it up, we had got a pile, I reckon, about two or three foot square, and we would round it up in piles and carry it out in a wheelbarrow, and we had piled about three wheel-barrows in it and got it boxed around the pile; we raked it up close, you know, and Cain was (on) one side of the pile and I was on the other, and in scraping with my shovel that way (indicating) I dropped my shovel down and Cain hollered. Well, when he hollered he says, `I got a nail in my eye, Buddie.' ... Q. I say, did you have — did you see, yourself, the nails or any of these things that were in the pile at the time just before you let your shovel down? A. No, sir; you couldn't see anything in there in a light of that kind; it was too dark. Q. When you let your shovel down did you feel or hear any nail as it struck? A. Yes, sir; plenty nails; you could feel the nails when I laid my shovel down; you could feel the nails fly from it... . Q. What do you do where you have light? A. Well, with that light we could see all right just what you were doing. Q. What? A. When we have light we could see all right how to work; see the difference in the nails, or anything... . Q. You don't know whether it (the nail) was piled up in the rubbish, or whether it was out on the floor or just where it was. A. No, sir... . Q. Well, how big was the...