Courter v. George W. Chase & Son Mercantile Co.

• Decision Date: 01 December 1924
• Docket Number: No. 14798.,14798.
• Citation: 266 S.W. 340
• Parties: COURTER v. GEORGE W. CI-LASE & SOikl [MERCANTILE CO.
• Court: Missouri Court of Appeals

266 S.W. 340

COURTER v. GEORGE W. CI-LASE & SOikl [MERCANTILE CO.

No. 14798.

Kansas City Court of Appeals. Missouri.

December 1, 1924.

Appeal from Circuit Court, Andrew County; Guy B. Parks, Judge.

"Not to be officially published."

Action by Mollie Courter against the George W. Chase & Son Mercantile Company. From a judgment for plaintiff, defendant appeals. Reversed.

Culver, Phillip & Voorhees, of St. Joseph, for appellant.

Ryan & Zwick and M. P. Murphy, all of St. Joseph, K. D. Cross, of Savannah, and Pross T. Cross, of Lathrop, for respondent.

BLAND, J.

This is an action to recover damages for the death of plaintiff's husband, alleged to have been caused by the negligence of the defendant. There was a verdict and judgment in favor of plaintiff in the sum of $4,500, and defendant has appealed.

The facts show that on January 17, 1921, deceased was employed as a laborer by the defendant, a candy manufacturer in St. Joseph. On the morning of that day he was engaged in carrying merchandise from the sidewalk into one of defendant's buildings. In doing this work he was required to pass over a runway leading from the sidewalk to a platform in front of a door to the building. This runway was about 14 feet in length, with one end resting upon the sidewalk and the other end elevated about 31 to 36 inches above the lower end; the width of the runway was about 39 inches. It was parallel to the building and adjacent thereto. The platform was about 4 or 5 feet long and 33 inches wide. The runway consisted of four planks, with cleats about 6 inches in length running crosswise up its center. On the day in question these cleats had been worn smooth and thin and had beveled edges.

Snow, ice, and sleet had been permitted to remain on the platform against these cleats, Deceased and his son made a few trips over the platform on the morning in question, when the former went to the foreman and told him of the slick condition of the runway, and asked permission to go to a nearby cinder pile to obtain cinders to place thereon, and to a pile of lumber on another floor in order to get a piece of timber to tack on the outside of the runway as a guard rail. The foreman said:

"No; you and your boy get this stuff in out of the weather, and I will have that attended to. * * * I will have a rail tacked on there, too, and take care of it right away."

Deceased and his son then returned to their work. Nothing was done to the runway, and in about half an hour thereafter deceased fell off the platform to the cement pavement below, alighting on his abdomen and chest. Plaintiff's testimony tends to show that as the result of deceased's injuries he died 24 days later. At the time deceased fell off the runway, he was carrying in his arms "a string" of wooden buckets nested together. These buckets are what are called 30-pound candy buckets; that is. they were intended to hold 30 pounds of candy. Plaintiff's son testified:

"Q. Where were you when your father fell, Fred? A. At the top of the runway on the platform.

"Q. What were you doing? A. Waiting for him to come up this runway, so I could go down.

"Q. Was there room enough to work two people on the runway there? A. Not unless you turned sideways.

"Q. Did he have a load of something at the time? A. He had a string of pails.

"Q. What kind of buckets, tin buckets, or what? A. What they call 30-pound candy buckets.

"Q. Wooden buckets? A. Yes.

"Q. Whereabouts on this runway was he at the time he fell? A. He was about a foot from the top.

"Q. When he fell, Fred, did you observe him as he fell? A. Well, when he fell he hit his side on either the pails or the runway as he fell, and landed face foremost down on the cement.

"Q. On the cement platform? A. Cement sidewalk."

No one else saw deceased fall off the runway. There was no other testimony on the part of plaintiff as to how he fell. Some of defendant's witnesses stated that deceased and his son told them that deceased stepped, off the runway. The petition alleges that the boards composing the runway were

"smooth and slick, and without any sufficient cleats, or roughened surface, or any other device or safeguard to prevent persons from slipping or falling thereon when using the same, and was very narrow, only about three feet in width, and not wide enough for the reasonably safe passage of two pergans thereon at ronce, and was without any guard rail or banister or protection on the outside and edge to prevent persons using the same from falling over the side and edge of the same to the concrete pavement below, and was wet and ice-covered, and that by reason of all the above the said platform was not a reasonably safe place for said John M. Courter to be and perform his work, all of which was well known to defendant, or by the exercise of ordinary care on its part could have been known to it; that the said platform was open and exposed to the weather, and that on the said 17th day of January the weather was and for a long time had been precipitating moisture and freezing, and the natural smoothness and slickness of the inclined surface of said platform was greatly increased by the presence of water, sleet, and ice thereon, all of which defendant well knew, or by the exercise of ordinary care could have known, in time to have removed the same, before the injury of said John M. Courter, on said date, or to have safeguarded the surface thereof by putting thereon ashes, sand, or other rough materials, that would keep the said surface from being slippery and dangerous, but this the defendant negligently failed to do."

The petition then alleges that deceased complained to the foreman of the "slippery and smooth condition of said platform, and protested against his being required to use the same in his work in its then sloping, narrow, unguarded, slick, smooth, and slippery condition," and that the foreman promised to remedy the condition, and that the foreman ordered deceased to return to the work, and relying upon his promise and assurance deceased did so return

"but that defendant negligently failed to place ashes, cinders, or any other materials on said platform, within a reasonable time, and within the time they could have done so by the exercise of ordinary care, and several hours later the said John M. Courter, while so using the said platform in and about his work, did, by reason of the aforesaid dangerous and unsafe condition of the said platform, and by reason of the negligent failure of defendant to remedy and correct the slick...