Comisky v. Urbauer-Atwood Heating Co.

• Decision Date: 03 February 1920
• Docket Number: No. 15844.,15844.
• Citation: 219 S.W. 999
• Parties: COMISKY v. URBAUER-ATWOOD HEATING CO.
• Court: Missouri Court of Appeals

219 S.W. 999

COMISKY v. URBAUER-ATWOOD HEATING CO.

No. 15844.

St. Louis Court of Appeals. Missouri.

February 3, 1920.

Rehearing Denied March 30, 1920.

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

"Not to be officially published."

Action by Michael Comisky against the Urbauer-Atwood Heating Company. Peremptory instruction for defendant, and plaintiff took an involuntary nonsuit with leave to move to set same aside. His motion therefor was denied, and he appeals. Reversed and remanded.

Abe Altman and Brownrigg & Mason, all of St. Louis, for appellant.

Kelley & Stark, of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff while in the employ of defendant corporation as its servant, alleged to have been occasioned by defendant's negligence. The cause was tried below, before the court and a jury, and, at the close of plaintiff's case the court gave a peremptory instruction offered by defendant, in the nature of a demurrer to the evidence; whereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside. After an unsuccessful motion to set aside the nonsuit, plaintiff appealed to this court.

The evidence discloses that on January 24, 1916, defendant was engaged in the business of installing sprinkler systems in buildings in the city of St. Louis, and plaintiff was in the employ of defendant as a "sprinkler fitter's helper." Plaintiff had been in defendant's employ for several weeks prior to the date of his injury, during which time he Worked under the orders and directions of a foreman, one Wolters. It was plaintiff's duty, as helper, to assist Wolters in installing pipes in buildings in connection with the installation of the sprinkler systems and to perform such other duties in connection therewith as Wolters might require of him.

On the day above mentioned, Wolters and plaintiff were sent by defendant to a certain building, occupied by a grocery company, for the purpose of installing therein a sprinkler system. In the course of this work it was necessary to extend a "riser" or pipe from the first floor to the second floor of the building, which required the boring of a hole through the floor of the upper room, and in order to do this it was found necessary to move a pile or tier of tobacco boxes which were stacked on the floor of this room. This room, which had been partitioned off from a larger room, was "15 or 20 feet square"; it was known as the "tobacco room," and contained many tiers of tobacco boxes. It appears that those boxes were about 15 or 18 inches in length, 10 or 12 inches in depth, and "not very wide." They were in crates or bundles, it is said, each containing four or five, or perhaps six, of the boxes, fastened together by means of iron straps. These crates or bundles were piled one upon another in tiers on the floor of the tobacco room, and one of these tiers occupied a place on the floor of this room where it was necessary to bore the hole mentioned.

Upon entering this room plaintiff was directed by Wolters to assist him in moving this tier of boxes. There was an aisle immediately west of this tier, about two feet in width, and west of this aisle other tobacco boxes were in like manner piled. In moving the top crate or bundle from the tier mentioned, plaintiff took hold of the west end and Wolters the east end thereof; and they lifted the bundle to the south and carried it a short distance and placed it upon the floor. In like manner, plaintiff and Wolters removed the other crates or bundles from this tier until they reached the last bundle, the one resting upon the floor. The evidence is that, in moving this last crate, Wolters got astride of it, facing east, with his right foot on the south side and his left foot on the north side thereof, and in this position took hold of the east end thereof; while plaintiff, also facing east, grasped the upper corners of the west end thereof. According to plaintiff's testimony, Wolters told him to "take hold," and, while plaintiff was in the position mentioned, Wolters, instead of lifting the crate as they had previously lifted the other crates or bundles in this tier, without warning, shoved the Crete violently toward the west, with such force that it was pushed entirely across the aisle, striking the tier of tobacco boxes on the west side of the aisle, by reason whereof the little finger of plaintiff's right hand was mashed against the latter tier of boxes.

As a result of plaintiff's injury, it became necessary to remove a portion of his finger; also blood poisoning set in with serious results.

In support of the ruling below forcing plaintiff to a nonsuit, it is earnestly argued for the defendant, respondent here, that Wolters was acting in a dual capacity; that while he was authorized to direct and control plaintiff, in the performance of the latter's duties, he also performed manual service as to which he occupied toward plaintiff the position of a mere fellow servant; and that in carrying these boxes plaintiff and...