Craven v. The Midland Milling Company
| Citation | 241 S.W. 658,209 Mo.App. 557 |
| Parties | CARRIE CRAVEN, Plaintiff in Error, v. THE MIDLAND MILLING COMPANY, Defendant in Error |
| Decision Date | 30 January 1922 |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. C. A. Burney Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Elon Levis and Atwood, Wickersham, Hill & Popham for plaintiff in error.
J. C Rosenberger, Rollin E. Talbert and T. A. Costolow for defendant in error.
The controversy herein was before this court on appeal, at the October Term, 1920. See Craven v. Midland Milling Co., 228 S.W. 513, where the appeal was dismissed for plaintiff's failure to bring up all of the testimony when the only contention was that the court had erred in sustaining a demurrer to the evidence. It is now brought up on a writ of error.
Defendant runs a large milling establishment, eight stories high, the fourth floor of which is a large open room having therein a row of "roll machines" from which long pipes run up, together with such apparatus as is necessary to convey the flour and milling material in the business. These "roll machines" are about six feet high, enclosed and box-shaped at the base, somewhat rolling at the top, and, at the front side about three feet from the floor, is a small metal door, about five inches wide and thirteen inches long. This door when closed is practically vertical, but when opened, or let down, it is horizontal. The machine does not rise perpendicularly from the top of the door when closed, but, at a point a few inches above the door, the front "bulges out" three or four inches and then slants back as it goes on up to the top of the machine.
Plaintiff, a woman 42 years of age, was employed on the third and fourth floors as a sweeper and as an oiler and cleaner of machinery.
On the morning of November 28, 1918, plaintiff went to work as usual about 7:30 o'clock on the fourth floor as oiler and sweeper. She was dusting in the room, having an ordinary handled broom and a brush with a handle on it "like a lady would dust a room with."
About 9 o'clock something about the mill broke necessitating the shutting down of the mill, and the machinery ceased running. Thereupon, plaintiff's foreman told her to stop dusting, get a ladder and clean overhead pipes, fill oil cups and work above.
Plaintiff testified that she went down to the third floor, inquired there for a ladder but was unable to find one, and upon returning to the fourth floor, the foreman told her he thought she was at work and inquired why she wasn't doing what he had directed; that she thereupon informed him she could not find a ladder. According to her evidence, the foreman then ordered plaintiff to let down the door on the "roll machine" and stand upon that, and assured plaintiff it was safe for her to do so, and she promptly obeyed the order. Plaintiff say she "had all the confidence in what the foreman said;" that the foreman "seemed to be in a hurry, and was rather impatient and anxious." Plaintiff says she "put her knee on the door" and got up there. After getting her feet on the now horizontal door, she pulled her "ordinary handled broom" which was all she had, up to where she was, and, reaching up with it, made a stroke with the broom. As she did this, her feet slipped on the smooth, iron, inner or upper side of the door and she fell on the concrete floor striking her ear against a hot radiator. She was severely burned, her wrist was broken, she was injured internally and in her back, her hearing was affected and her wrist was weakened and deformed. She says neither a ladder nor a long handled broom were provided, but that afterwards when plaintiff returned to work she was furnished with a "nice long brush" and "a dandy good stepladder." Neither of these, according to her evidence, were furnished before she was hurt.
There was flour on the inner or upper side of the door, and after her fall the mark therein across the door showed where her foot had slipped. The door did not bend or sag in any way, nor was it broken. Plaintiff had on cloth-topped button shoes with ordinary low heels and was wearing overalls. The inner side of the door whereon plaintiff stood was "slick," but plaintiff had not examined it nor paid any attention to it before she fell. However, she admitted that she had opened these doors a number of times before, that when she was waiting to help the millers with their work it was a part of her duties to open these doors and that she knew what the inside surface of them was like. As this was a flouring mill and she was employed to sweep and dust, no doubt "dust and flour" got upon everything and the foreman so testified. Doubtless, however, it would not accumulate on things out in the room like it would on the inside of the machines since the rooms were swept and dusted. Defendant's evidence shows it was necessary to dust and clean the room, and that in the work of the machine the flour passed over the surface of the door.
There was a ladder in this room on the fourth floor, about four feet high, with a top about 18 inches long and 12 inches wide, not a stepladder, but it sat solid and square on the floor and was a "very substantial looking" ladder, according to the description given of it by defendant's witnesses.
The foreman, also defendant's witness, said this ladder was "used for any purpose where we used a ladder; no special purpose;" that it was used to get up to a spout on top of a machine but he didn't know that plaintiff ever used it. Later he said that plaintiff in cleaning the spouts would "usually get a ladder and broom;" that it was "sometimes this ladder and sometimes another ladder," a step ladder, probably a little taller than the other one, and that it was "usually kept on the third or fourth floor." He admitted that "we used it to sit on" and that the men did sit on it. He admitted he "told her to get a ladder and brush down the spouts on the fourth floor" and later said that he told her to "get a ladder and don't climb on that machine;" that he "thought a ladder was safer," yet, in a moment after, he said the door was "absolutely safe to stand on" and he had "stood on it a million times." But he may have meant it was safe, for him for he said he never put anyone else on them and that he never used a ladder because it was "handier for me and safe for me." He denied ordering the plaintiff to get on the door.
Plaintiff testified that she never did get upon the door of the machine on the fourth floor but once before the occasion of her fall, and that was when she was ordered to do so by the head miller to clean off some oil on the pipes; that she did have to climb up on the machinery, radiators, window sills, elevator boxes, etc., on the third floor, but the machines there were smaller, had running boards on them and in climbing where she did on the third floor she could hold to things with one hand while she swept or dusted, but that she never got upon the door of the machines on the fourth floor except the two times mentioned, both of which times she was ordered to do so. She was cross-examined as to her deposition previously given, but explained that what she said in it about climbing on the machines "many times" had reference to the third floor, and that when she said therein that she had gotten on the machines on the fourth floor "a few times," she had reference to the two times she was ordered to do so; that in dusting on the fourth floor, with the exception of the two times mentioned, she had only dusted as high as she could without getting on anything. In her deposition, in answer to the question "Had you done it before, got upon those doors?", she answered, "No, I have not, I have had to crawl on the other machines anyway I could to do the work." This may refer to the machines on the third floor as she says it did, when testifying on the trial, or it may mean the machines on the fourth floor. But her deposition continued wherein her cross-examination therein said: "We are talking about the roll stands on the fourth floor, the doors?" and she replied "Yes."
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