Connole v. Floyd Plant Food Co.
| Decision Date | 15 September 1936 |
| Docket Number | 23760 |
| Citation | 96 S.W.2d 655 |
| Parties | CONNOLE v. FLOYD PLANT FOOD CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Clyde C. Beck, Judge.
“ Not to be published in State Reports.”
Action by Martha L. Connole, administratrix of the estate of J. E Cusick, deceased, against the Floyd Plant Food Company, a corporation. From a judgment in favor of plaintiff, the defendant appeals.
Reversed.
Bishop & Claiborne and George E. Heneghan, all of St. Louis, for appellant.
J Edward Gragg and Robert L. Aronson, both of St. Louis, for respondent.
This is an action by the administratrix of the estate of J. L. Cusick as plaintiff, against the Floyd Plant Food Company, a corporation, as defendant, to recover damages for and on behalf of the heirs at law of said Cusick, deceased, who died as the result of injuries occasioned through a fall while in and visiting defendant’s plant located at Monsanto, Ill. A judgment resulted in favor of plaintiff, and defendant in due course appeals.
Plaintiff’s amended petition alleges that Cusick was a visitor in the plant of the defendant at the invitation and request of defendant; that pursuant to said invitation he was being guided and directed along certain portions of a platform in defendant’s plant which was five feet higher than other parts of the floor in the plant; that such platform was not equipped with any guard rail; that Cusick was an elderly man and his eyesight defective, and that he was, therefore, unable to clearly distinguish objects or to discover for himself that there was an abrupt drop from the said platform to the floor; that, being conducted by defendant’s employees, he was relying upon them for safe passage; that defendant’s employees knew of Cusick’s defective eyesight, but negligently and carelessly guided him to a place immediately opposite the end of said platform, where Cusick was in a position of imminent peril of being injured in the event he moved from said position; that defendant negligently failed and omitted to warn him of the danger of stepping or moving at such point, and negligently permitted Cusick to move when the defendant knew, or by the exercise of ordinary care could have known, that the deceased, under the circumstances aforesaid, would be likely to walk or step or move and be precipitated from the platform to the floor below, in the event he was not so warned or prevented from so doing; that defendant negligently permitted vast clouds of dust to be emitted into the atmosphere so that the visibility was poor and deceased would be unlikely to be able to discover and discern the end of said platform, and that defendant negligently failed to provide a guard or rail at the end of said platform for the purpose of preventing persons, under circumstances aforesaid, from falling or stepping from said platform, and that the defendant negligently failed to warn the deceased of the danger of moving forward or moving under the circumstances, when the defendant knew or by the exercise of ordinary care would have known that without said warning and without said other precautions Cusick would be liable to step from said platform and be injured; that Cusick did take a step and fall from the platform to the concrete floor beneath and sustained injuries from which he subsequently died.
Defendant’s answer was a general denial.
The record discloses that J. L. Cusick, a resident of Louisville, Ky., sixty-four years of age, in October, 1931, together with his wife, visited his married daughter, Mrs. J. Sargent, at Clayton, Mo. Cusick’s son-in-law, John Sargent, was in the employ of defendant company in an official capacity and had supervisory authority over its plant at Monsanto, Ill., where the company manufactured fertilizer.
On the morning of October 9, 1931, Sargent asked Cusick to accompany him on a visit to the plant. Cusick, while otherwise in good health, had cataracts in both eyes and his sight was defective. His right eye, some time prior to his coming to St. Louis, had been operated on for cataract. That Cusick’s eyesight was defective was known not alone by his son-in-law, Sargent, but also to J. E. Edwards, superintendent of the plant whom Cusick met upon his visit to the plant.
Edwards was superintendent of the plant and Sargent was his superior. Edwards, with reference to his duties as superintendent in connection with visitors, testified: "Well, any one, a customer, or some one like that, why, if any one came over, why it was my duty to go with them and show them through the plant, if they wished to see it." As to Sargent’s visit to the plant, he testified that he would come over to the plant several times a week; "*** he would go through the plant and look over the stock of materials on hand and find out if we needed certain things," and that was what Sargent was doing on the occasion when Cusick visited the plant and met with his injuries which caused his death.
Edwards, Sargent, and Cusick left the office of the plant together and walked along a platform on the outside of the mill and entered the plant through a door leading from this outside platform, then walked across the building to inspect a bin of material. The point at which the three men stopped was near the edge of a loading platform, which platform was some five feet above a concrete driveway. The position of the men was such that Cusick was standing nearest to the edge of the platform. While Edwards was looking into the bin of material Sargent asked Edwards how much stock of bone meal there was on hand at the plant. Edwards thereupon turned around to look at the bags of bone meal stored near-by and as he turned toward Sargent and Cusick, "in this moment Mr. Cusick stepped off this platform" and fell to the concrete driveway below, causing him injuries which resulted in his death.
Edwards testified that there was dust in the plant; that there was "no sign, or red light or railing" to indicate where the platform came to an end, and that Cusick had not been warned that the platform came to an end at that point or that there was a drop there.
Defendant stood upon a demurrer and offered no testimony.
Plaintiff, respondent here, confesses error for the failure to plead and prove the Illinois law pertaining to wrongful death actions.
Since under the common law no action lies for damages growing out of the...
To continue reading
Request your trial