Cedarland v. Thompson

• Decision Date: 27 January 1919
• Citation: 209 S.W. 554,200 Mo.App. 618
• Parties: HAZEL CEDARLAND, a minor by her next friend,--Respondent, v. ALVAH O. THOMPSON, Appellant
• Court: Kansas Court of Appeals

209 S.W. 554

200 Mo.App. 618

HAZEL CEDARLAND, a minor by her next friend,--Respondent, v. ALVAH O. THOMPSON, Appellant

Court of Appeals of Missouri, Kansas City

January 27, 1919

Appeal from Jackson Circuit Court.--Hon. Allen C. Southern, Judge.

AFFIRMED.

Judgment affirmed.

Harding Deatherage, Murphy & Stinson for appellant.

T. J Madden and Harry R. Freeman for respondent.

OPINION

BLAND, J.--

Plaintiff was injured on the 14th day of April, 1917, as the result of a pile of lumber falling upon her. The lumber had been negligently placed upon a public sidewalk in Kansas City, Missouri, by defendant's servants two days prior to the injury. She recovered a verdict and judgment and defendant has appealed.

Defendant's first point is that his demurrer to the evidence should have been sustained. The petition alleged that the breach of duty of which defendant was guilty was that he failed to carefully place and pile the lumber upon the public street or sidewalk so as not to endanger the safety of persons and especially children who were upon or using the street or sidewalk. The petition further alleged that the lumber was negligently piled as follows:

"Said pile of lumber was top heavy, wider at the top than the bottom and was in a leaning condition, the boards were of irregular length, width and thickness and the same were piled in an uneven manner and no cross pieces were used to bind said pile of lumber or braces to sustain the same. Said pile of lumber rendered said street and sidewalk dangerous for persons and children using said street and sidewalk."

The evidence shows that one Rohe was building a house at 4551 Mercer Street, in Kansas City, Missouri; that defendant was delivering lumber to said Rohe to be used in the construction of said house; that the pile of lumber which fell upon the plaintiff was delivered by one of defendant's agents on Thursday, April 12, 1917, and consisted of one truck load. The lumber was piled by the driver of the truck and one other and when piled was four feet wide, four or five feet high, and fifteen or sixteen feet in length. The pile consisted of a number of bunches of patent laths, 2 by 8 and 2 by 10 joists, twelve or fifteen feet in length, and a small amount of flooring. The patent laths were tied in bunches of eight laths to the bunch; the laths were about one and one-half inches thick and four inches in width. The bunches were uneven in length, some being three feet, some five feet and others seven feet in length. The lumber was piled lengthwise of and between the paved part of the sidewalk and the space where the curb would be had the latter been constructed and in place, which space was about four or five feet in width. The laths were piled next to the paved sidewalk space, about four feet high and about two feet deep. The whole pile was four feet deep, the heavy lumber two feet deep leaving the laths two feet deep. The bunches of laths were braced by having three boards placed crosswise, one at each end and one in the middle, to bind the pile of laths. Some of the bunches had been broken open and were loose. The ground upon which the lumber was piled was uneven and muddy.

After the laths were loaded and piled the heavy lumber was unloaded and placed next to the laths and between the laths and the curb space. The heavy lumber was piled up even with the top of the laths and then over on the same. The heavy lumber was piled to a thickness of about sixteen or seventeen inches and in addition twelve or fifteen boards were placed on top of the laths. These heavy boards were twelve or fifteen feet in length. The heavy lumber was not bound to the laths in any way.

After all the lumber had been piled, if one would rub against the heavy lumber on top of the laths the laths would shake. There was evidence tending to show that the pile of lumber remained in the same condition from the time it was placed until it fell over upon plaintiff. The binding strips between the laths sloped toward the paved part of the sidewalk three to five inches. The pile of lumber was leaning toward the paved part of the sidewalk and was wider at the top than at the bottom.

Plaintiff, a girl thirteen years of age at the time she was injured, was playing hide and seek with her younger brother. She went to that side of the lumber next to the paved part of the sidewalk and placed her hand and head against the top and counted one hundred. She did not have hold of the lumber and did not lean or press against it. As she withdrew her hand and turned to go away the heavy boards fell upon her covering her up and crushing her foot and leg, resulting in a serious and permanent injury to her.

In connection with defendant's point that his demurrer should have been sustained, he insists that the allegations in the petition covering the alleged negligent way in which the lumber was piled were not proved. This point is not well taken. The evidence shows that the pile of lumber was wider at the top than at the bottom. Of course, this, together with the fact that heavier lumber was piled on the laths and the whole pile was unstable, sustained the allegation that the pile of lumber was top heavy. There was also evidence that the pile of lumber was in a leaning condition; that the boards constituting the same were of irregular length, width and thickness and were piled in an uneven manner. While there was evidence that there were cross pieces used to bind the laths, there were no cross pieces used to bind the pile of lumber to the laths, therefore, the allegation that the pile was not bound was proven. It is true that some of these facts were established by witnesses who testified as to the condition of the pile on April 13th and 14th, but there being evidence that it remained in the same condition until it fell, the evidence of these witnesses may be considered.

Defendant urges that this is not a res ipsa loquitur case and there is no evidence that the way in which the lumber was piled was negligent or that the way in which it was piled caused it to fall. We think there is no merit in this contention. Defendant when piling the lumber should have anticipated that persons would use the sidewalk, along against and upon which the same was placed, and that people would come in contact with the lumber. Defendant owed a greater duty to the public than to merely pile it in a position of such little stability that it was little more than evenly balanced between a stable position and a falling one. A showing that a portion of the pile was in a loose condition, that is, the laths, so that it would shake when the lumber was touched; that heavy boards were placed on top of the laths without being bound or tied to the laths in any way; that the pile was wider at the top than at the bottom and in a leaning condition; that the lumber constituting the pile was of irregular length, width and thickness and that the same was not bound or braced except by binding pieces placed through the laths alone, was sufficient from which the jury might find that the lumber was negligently piled; that is was of unstable equilibrium and that the fact that it might fall could be reasonably anticipated. Nor was any expert testimony needed to show that the way in which the lumber was piled was a negligent one and that it was liable to fall,...