Clark v. Rock Hill Quarry & Construction Co.

• Decision Date: 19 June 1928
• Docket Number: No. 20216.,20216.
• Citation: 7 S.W.2d 716
• Court: Missouri Court of Appeals
• Parties: CLARK v. ROCK HILL QUARRY & CONSTRUCTION CO.

7 S.W.2d 716

CLARK v. ROCK HILL QUARRY & CONSTRUCTION CO.

No. 20216.

St. Louis Court of Appeals. Missouri.

June 19, 1928.

Rehearing Denied with Modification July 6, 1928.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by William J. Clark against the Rock Hill Quarry & Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jones, Hocker, Sullivan & Angert, of St. Louis, for appellant.

Thomas A. Dwyer and Gillespie & Demsey, all of St. Louis, for respondent.

BECKER, J.

Plaintiff, in an action for personal injuries, had judgment against the defendant for $3,500. Defendant in due course appeals.

Plaintiff's amended petition, on which the case was tried, in effect alleges that he was employed by the defendant as quarryman in their quarry near Brentwood, in St. Louis county, Mo.; that on January 22, 1925, whilst so employed and acting under the orders and directions of the superintendent of the defendant, and while in the exercise of ordinary care, plaintiff was struck in the right eye by a piece of stone or rock knocked from the side of the quarry at a point where plaintiff was working, by another employee of the defendant, who was acting under the orders and directions of said superintendent of the defendant.

The assignments of negligence in the petition are: First, that the defendant negligently failed to warn plaintiff when defendant's employee, acting under defendant's direction, was about to knock rock off the side of the quarry with a sledge-hammer; and, second, that defendant negligently failed to exercise ordinary care to provide a safe place in which to work, in that defendant failed to provide sufficient working space for plaintiff, and as a consequence plaintiff and other employees of defendant working with plaintiff were exposed to danger to their person on account of the nature of the work ordered by the defendant through defendant's superintendent. The answer of the defendant is a general denial.

At the trial, defendant adduced no testimony, but offered an instruction in the nature of a demurrer, which the court refused, and here on appeal defendant urges that the demurrer offered at the close of plaintiff's case was not well ruled.

In considering this point it is necessary that the evidence be viewed in the light most favorable to plaintiff and that in addition plaintiff be allowed the benefit of all reasonable inferences of fact which the jury could with propriety have drawn therefrom, and we may not draw inferences of fact in defendant's favor to countervail or overthrow inferences tending to support plaintiff's right to recover. Crowell v. Screw Co. (Mo. App.) 293 S. W. 521. Testing the evidence under this rule, we find that there is testimony tending to prove that plaintiff was a stone-paving cutter by trade, but that at the time in question he was in the employ of defendant as a quarryman, quarrying rock into building stone. Work was in progress on the cutting of a pit from the earth's surface to the floor of the quarry some 50 feet below. This opening or pit was being made for a belt to extend from a crusher in the bottom of the quarry to the surface. The pit had been dug 6 or 8 feet wide and some 8 or 10 feet in length and 5 feet in depth, and one side opened into the quarry, a drop of some 50 feet.

Plaintiff's own testimony is to the effect that, after lunch, about 1 o'clock, on the day in question he with four other employees was ordered by one Billman, superintendent of the defendant company, into the pit; that there was a big stone there which the superintendent told plaintiff to quarry up into such dimensions that it could be lifted out and put on the bank; that accordingly plaintiff and three of his fellow workmen got into the pit, one of them occupied himself with drilling holes, another put powder in them and prepared the shot, while still another named Purrington and plaintiff quarried the stone and lifted it out of the pit and placed it on the bank; that at the time the superintendent gave these orders he was present at the surface of the pit; that, after plaintiff and his colaborers had worked in the pit for perhaps a half hour and plaintiff and Purrington were engaged in lifting the quarried rock up onto the bank, and plaintiff had turned around after setting one piece up, another employee of the defendant named Moore, standing on the surface and at the edge of the pit, started to chip rock from the side wall of the pit with a 14-pound hammer; that plaintiff had not seen Moore there nor was he aware that Moore intended to chip rock from that place or any place from the side wall of the pit; and that, while plaintiff was picking up rock to put up on the surface, a piece of rock caused by Moore chipping on the side of the pit struck plaintiff in the eye. Plaintiff testified positively that he did not see Moore until he was hit. A witness named Purrington testified that defendant's superintendent, Billman, before the noon hour, had ordered Moore and others to knock the edges off the rock on the sides of the pit to get the pit smooth and squared up and make it a little wider. Plaintiff himself testified that he knew of no such orders, but that the superintendent had given him new orders after lunch to get down into the pit and quarry up a big stone that was there so the pieces thereof could be lifted out and put upon the bank.

On cross-examination, plaintiff specifically denied that he knew that Moore was up on the surface breaking rock off of the edges, and reiterated that the first he knew about it was after he had lifted two or three stones to the surface and had turned around to get another piece of stone that was already quarried, and was in the act of turning around so as to enable him to lift it to the surface when Moore, "crushing off this stone—it was flying—and I got hit"; that he did not know that Moore was knocking off stone from the side of the quarry until that moment.

Plaintiff's witness Purrington, on redirect examination, was asked whether the superintendent, Billman, "did give these orders to straighten out, to knock off this stone off of the side of the pit." He answered: "Yes, sir." And to the question, "And Mr. Moore was there at the time?" he answered, "Yes, sir."

In this state of the record we must rule that plaintiff was entitled to...