Campbell v. Aunt Jemima Mills Co.

• Decision Date: 03 November 1922
• Docket Number: No. 14127.,14127.
• Citation: 211 Mo. App. 670,245 S.W. 620
• Parties: CAMPBELL v. AUNT JEMIMA MILLS CO.
• Court: Missouri Court of Appeals

245 S.W. 620

211 Mo. App. 670

CAMPBELL v. AUNT JEMIMA MILLS CO.

No. 14127.

Kansas City Court of Appeals. Missouri.

November 3, 1922.

Rehearing Denied December 4, 1922.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by Andrew A. Campbell against the Aunt Jemima Mills Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

William E. Stringfellow, of St. Joseph, for appellant.

Homer C. King, and Strop & Mayer, all of St. Joseph, for respondent.

TRIMBLE, P. J.

Plaintiff was injured by falling over some timbers left lying in the passageway of the basement of defendant's mill. He brought this suit, alleging that his injury was caused by the defendant's negligence, and recovered a verdict and judgment for $2,000 from which the defendant has appealed.

The mill was a large one occupying a building of several stories. On week days, plaintiff was employed to run the elevator, but, on Sundays and other holidays when the mill was not in operation, he was the day watchman. As such, it was his duty to go around through the building and basement, and, at various points therein, register on a clock his presence at the particular point and time indicated. The system thus registering the watchman's rounds was connected with the Western Union office in such way that a failure to register at any point, within a period or leeway of eight minutes of the time specified for doing so, would cause the Western Union to send a man to investigate and see what was wrong.

The passageway, 8 feet wide and 260 feet long, ran the entire length a the basement from a point on the east side thereof, a few feet south of the bottom of the elevator shaft, to the extreme west side of the building. Through it many of the employés, when the mill was in operation, passed to and fro in the performance of their duties. The watchman's fourth registration point was at the east end of the passageway, and his fifth was at the west end thereof.

Some days, possibly a week or more before the date of plaintiff's injury, 12 or 15 timbers (6×6's or 6×8's, length not shown), were taken into the basement for the purpose of strengthening the supports to the floor above. They were taken in through the elevator shaft, and, were "nicely piled" in the passage "close up" against two of the pillars that stood at intervals along the south side of said passageway. The east end of the pile was in the neighborhood of 45 feet or more west of the east end of the passageway. Just how far out Into the passageway these timbers extended when thus piled is not shown. But the evidence in plaintiff's behalf is that they did not constitute an obstruction as thus "piled up in the first place." They were piled "right at the edge of the aisle; right against the columns." Plaintiff was working at his elevator when they were brought in, and afterwards knew they were piled there in that way. He also, at different times throughout the week preceding the date of his injury (which occurred on Sunday), left his elevator and walked south to the east end of the passageway and, looking along it, saw the workmen using the timbers in their work of shoring up the basement ceiling. He does not admit (and we think this is important and is a matter which defendant entirely overlooks), that on the Sunday morning he was hurt he knew that any timbers were left in the passageway or that any were left out from the side thereof so as to constitute an obstruction. His testimony is, "I seen it [the pile of timber] when they put it in there, long before it was used."

On Saturday afternoon preceding the injury, the men engaged in using the timbers to shore up the ceiling worked until 5:30 and had used up all but three of the timbers. In the process of picking out the particular timber desired, the men engaged thereat "naturally rolled them out," and the three they didn't use were left on the floor, lengthwise of the passageway, not close up to the pillars on the south nor piled one upon the other but slightly apart, so that the outermost one was nearly in the middle of the way, being 3½ feet from the columns against which the timbers were originally piled, and leaving 4½ feet of the passageway unobstructed or hardly that, if we count out the slight space occupied by certain things which, in defendant's photographs A and D appear to project a little way into the aisle from the space on the north side thereof. The evidence it plaintiff's behalf clearly carries the necessary inference that when the workmen quit at 5:30 Saturday afternoon the three unused timbers were left out in the passageway farther from the columns than the pile had been, for Stiff, one of the men at work there, in addition to saying they "rolled them out" in selecting the particular timber wanted, testified that when 5:30 or quitting time came, he said to Cooper, the man then in charge of the work, "We better pile up these logs," but Cooper refused, saying, "It's quitting time, to hell with them." Plaintiff knew nothing of this as he was operating the elevator, and in it carried the men up and out of the basement, they taking their tools with them.

Next morning (Sunday), at 7 o'clock, plaintiff arrived at the mill to begin his duties as watchman for the day. In making his rounds, the watchman always carried a flash light which, furnished by the company, was kept in a cupboard in the engine room on the ground floor. Plaintiff looked in the cupboard for it but none was there, and he so told Brown the engineer, who was the only other person on the premises. Brown said "I have one here in my desk; I will fix it up for you." Upon receiving this promise, plaintiff, without a flash light, started on his first round to be made in the hour from 7 to 8 o'clock for the purpose of registering his presence at each of the points required. The evidence in plaintiff's behalf is that a flash light was not carried because the basement or passageway was insufficiently lighted when the electric lights were burning, current for which was supplied by the light company of the city; that when the lights were on the basement was sufficiently lighted to enable the watchman to go through it without a flash light, but there were one or two dark places in the building where a flash light was needed, and, besides this, the evidence is that "the lights would go off anywhere from a few minutes to an hour every once in a while."

Plaintiff made his first round in the hour beginning at 7 o'clock, and, of course, in going from the fourth to the fifth registration point, went along the passageway from east to west passing the place where the timbers had been originally piled and where the three unused timbers had been left. He says, however, that he did not see the timbers there; nor did he know they were there or that they were lying out in the passageway. In the hour beginning at 8 o'clock he made a second round and again passed along the passageway but again saw no timbers. As he made these two rounds the lights that usually burned on Sunday were burning.

At 8 o'clock he was again in the engine room upstairs ready to begin his third round when the lights in the building went out, being shut off by the light company La order to make some repairs needed on the line. No notice of intention to turn off the lights was given, and defendant herein was in no way to blame therefor, nor is it charged or claimed that there was any negligence or the part of defendant in this regard.

After Brown had promised plaintiff to fix up the flash light he had in his desk, and while plaintiff was out on his rounds without a flash light, Brown did fix up the flash light, but instead of putting it in the cupboard where the watchman's flash light was usually kept, he laid it on his desk which was across the room from the cupboard where it was in plain view had plaintiff looked for it there. He did not do so, however, but looked only in the cupboard and, not finding it there concluded that Brown, who by that time had left the building, had not fixed it as he said he would, and plaintiff then started on his third round without a flash light. The first few registration points were where daylight was available, but after registering at the fourth place, on the east end of the passageway, the plaintiff started along it to the fifth registration place, and says the passageway was "dark as a dungeon." There was a half window at the west end of the passageway, the daylight from which plaintiff could see from where he was, and, with this as an objective or goal to keep him en the right course, he started along the passageway towards the window light with his arms outstretched so that, if he did get out of his course, he, upon touching the things on either side, could correct his course and keep in the middle of the passageway. There was a general rule of the company that this passageway should be kept "absolutely clear" of obstructions. Plaintiff says that in getting out and taking into the basement boxes of milling materials, or working there, things would be left for the time being or for a few minutes, but as soon as possible they were to be shoved out of the way, and nothing was "expected to be left in the passageway over night." And it also appears that plaintiff was told by the superintendent it was his duty "any time you see any obstructions in that aisle to remove them." When plaintiff reached the place where the three unused timbers lay he stumbled over them, and, falling, broke his hip.

The negligence charged in the petition is that defendant "negligently and carelessly permitted said passageway to become and to be dangerous and not reasonably safe" in that, while defendant had a rule that the passageway should be kept clean and free of all timber and débris, yet defendant "had negligently and carelessly permitted timber and débris to be and remain in said passageway." As there was no débris, but only timbers, in the passageway, and it...