Crowell v. St. Louis Screw Co.

• Decision Date: 08 March 1927
• Parties: ROY CROWELL, RESPONDENT, v. ST. LOUIS SCREW COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

293 S.W. 521

220 Mo.App. 728

ROY CROWELL, RESPONDENT, v. ST. LOUIS SCREW COMPANY, A CORPORATION, APPELLANT.

Court of Appeals of Missouri, St. Louis

March 8, 1927

Appeal from the Circuit Court of the City of St. Louis.--Hon. Wilson A. Taylor, Judge.

AFFIRMED.

Judgment affirmed.

Holland Rutledge & Lashly and Ernest A. Green for appellant.

(1) The court erred in refusing to give to the jury the peremptory instructions in the nature of demurrers to the evidence offered by the defendant at the close of the plaintiff's case and also at the close of the whole case. Plaintiff was not entitled to recover in this action, because of his own contributory negligence as disclosed by his own testimony. Kube v. Northwestern Coal & Mining Co., 209 S.W 614; Thomas v. Atlas Portland Cement Co., 211 Mo.App. 141, 245 S.W. 575; Hall v. Kansas City Midland Coal & Mining Co., 249 S.W. 444; Berry v. Majestic Milling Co., 263 S.W. 406, 304 Mo. 292, affirming judgment (App.), 240 S.W. 829; Reynolds v. City Ice & Storage Co., 184 S.W. 934; Bathe v. Morehouse Stave & Mfg. Co., 201 S.W. 925, 199 Mo.App. 127; Adams v Wabash R. R. Co., 199 S.W. 969. (2) The court erred in refusing to give to the jury instruction lettered H, same being a correct instruction requested by defendant upon the subject of accident, as there was abundant testimony in the case tending to show that plaintiff's injuries were caused by a mere accident. Henry v. Grand Avenue Ry. Co., 113 Mo. 525; Nehring v. Chas. M. Monroe Stationery Co., 191 S.W. 1054; Simon v. Metropolitan St. Ry. Co., 178 S.W. 449; Maloney v. United Rwys. Co., 237 S.W. 515.

John F. Clancy, John S. Marsalek and Mark D. Eagleton for respondent.

(1) In ruling upon a demurrer offered at the close of the case the court will accept as true all evidence in the record in plaintiff's favor and will make every inference of fact in plaintiff's favor which a jury could, with any degree of propriety, draw therefrom. In ruling upon the demurrer the court will not draw inferences of fact in defendant's favor to countervail or overthrow inferences tending to support plaintiff's cause of action. Buesching v. Gas Co., 73 Mo. 219; Hall v. Coal & Coke Co., 260 Mo. 351; Lorton v. Railroad, 306 Mo. 137. The demurrer cannot be sustained unless the evidence, when considered in the light of the foregoing rule, leaves no room for men of reasonable intelligence to differ on an essential issue in the case. Steffens v. Fisher, 161 Mo.App. 386. It is not the law that a statement or inference against the plaintiff, found in or drawn from his testimony, is assumed to be true on demurrer. Benjamin v. Railroad, 245 Mo. 615-6; Rigley v. Pryor, 290 Mo. 10; Rowe v. U. Rys. Co., 211 Mo.App. 541; Downs v. Racine-Sattley Co., 175 Mo.App. 386-388; Anderson v. Davis, 284 S.W. 439. The trial court would not have been justified in holding plaintiff negligent as a matter of law, because he gave an affirmative answer to a question by defendant's counsel, on cross-examination, "Every time you went up on it (the ladder), you considered that you were taking your life in your hands." To segregate this proposition from the other facts and circumstances in evidence would violate the rule requiring the court to view the evidence in its light most favorable to plaintiff. Thornsberry v. Railroad, 178 S.W. 197; Brown v. Mill. Co., 217 S.W. 332; Gambino v. Coal Co., 180 Mo.App. 655; Flach v. Ball, 209 Mo.App. 398-9. (2) Plaintiff could not be held guilty of contributory negligence, as a matter of law, because he knew of the defective and dangerous condition of the ladder. Under such circumstances the question of contributory negligence is for the jury, unless the danger is so glaring and imminent as to threaten immediate injury. Jewel v. Bolt & Nut Co., 231 Mo. 199, et seq.; Corby v. Tel. Co., 231 Mo. 442-3; Mueller v. Purina Co., 254 S.W. 720; Hamman v. Coal Co., 156 Mo. 243; Lampe v. Brew. Ass'n, 204 Mo.App. 387; Carter v. Baldwin, 107 Mo.App. 217, l. c. 229; Bowman v. Electric Co., 213 S.W. 164; State ex rel. v. Reynolds, 200 S.W. 58-9; McDonald v. Const. Co., 196 Mo.App. 65; Bliesner v. Distilling Co., 174 Mo.App. 147-8. (3) Especially does the above rule apply where, as in the present case, the plaintiff complains of the danger to the master and is ordered to proceed with the work. Burkard v. Rope Co., 217 Mo. 481; Buckner v. Horse & Mule Co., 221 Mo. 709; 5 Thompson, Negligence (2 Ed.), secs. 5378-79. (4) There being no evidence suggesting an unknown cause for the casualty, the court properly refused defendant's instruction H, on the theory of accident. Wise v. Transit Co., 198 Mo. 559-560; Zeis v. Brew. Assn., 205 Mo. 638; Turnbow v. Dunham, 272 Mo. 65; Beard v. Railroad, 272 Mo. 156; Dietzman v. Screw Co., 300 Mo. 214; Chaar v. McLoon, 304 Mo. 245-7; Lagarce v. Railroad, 183 Mo.App. 88; Cook v. Union E. L. & P. Co., 232 S.W. 248; Lamar v. Salt Co., 242 S.W. 690; Bethurkas v. Railroad, 249 S.W. 438; Head v. Lumber Co., 281 S.W. 444-5; Stewart v. Gas Co., 241 S.W. 912-3.

BECKER, J. Daues, P. J., and Nipper, J., concur.

OPINION

BECKER, J.--

This is an action for damages for personal injuries sustained on July 3, 1924, by plaintiff, an employee of defendant, when he was caused to fall from a certain ladder. The verdict of the jury was for plaintiff in the sum of $ 5000, and judgment was duly rendered thereon, from which defendant has appealed.

The negligence pleaded and relied upon by plaintiff was as follows:

"1. Defendant negligently ordered, required, caused and permitted plaintiff to attempt to descend upon and use said ladder, although it was wobbly and shaky and not securely or adequately attached to its support and was short and not sufficiently high to enable plaintiff, while passing from said crane to it, to grasp and hold the same and support himself before and while stepping and passing upon it, and it was greasy, oily and slick, and by reason of the aforesaid conditions was likely to cause plaintiff to fall therefrom and was dangerous and not reasonably safe.

"2. Defendant negligently ordered, directed, caused, required and permitted plaintiff to use and attempt to use said ladder in descending from said crane as aforesaid, although in so doing plaintiff was required to step across a great and unreasonable distance to reach said ladder from said crane, and said crane and ladder were not close enough together and that plaintiff was likely to be caused to fall thereby and it was dangerous and not reasonably safe.

"3. Defendant negligently ordered, required, caused and permitted plaintiff to attempt to descend upon said ladder from said crane, although there was no platform or footing provided thereon or available to plaintiff to use in passing from said crane to said ladder, which was a great and unreasonable distance as aforesaid, and without such platform it was dangerous and not reasonably safe.

"4. Defendant negligently failed to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to work, or reasonably safe methods of doing said work, as aforesaid, in that said ladder was defective and dangerous as aforesaid, and not sufficiently high, and was wobbly and greasy, and was a great and unnecessary distance from said crane, and no platform was provided to be used in connection therewith, and plaintiff, in descending by means of said ladder as aforesaid, was likely to fall and be injured and was not reasonably safe."

The answer was a general denial, coupled with a plea of contributory negligence, to the effect that plaintiff failed to exercise ordinary care to secure a firm hold upon the ladder, and to observe his surroundings and maintain his balance and equilibrium.

The reply was conventional.

Plaintiff was twenty-eight years of age at the time of his injury, and had been in the service of defendant for seven months. He was originally employed as an acetylene burner, but during the last five or six months of his employment he had been assigned duties as a millwright helper, under the direction of a foreman, Charles Pettit by name. On the day in question, plaintiff was engaged in doing certain work upon an overhead crane, thirty feet above the ground. While in the act of descending from the crane upon a ladder furnished by defendant for such purpose, he fell to the ground, whereby he sustained severe injuries, the nature and extent of which are not at issue in this appeal.

This ladder was described as a pipe ladder with iron rungs, and was fastened to a metal column by means of iron clamps that circled the side pipes and bolted to the column. Plaintiff's evidence disclosed, however, that certain of these clamps or supports near the top of the ladder were loose, and had been loose for about one month, during which period plaintiff had had occasion to use the ladder some six to ten times. Plaintiff had complained to Pettit, his foreman, of this condition of the ladder, but had been told by him that the ladder was all right; that it was just as good as it ever was; that it had always been that way--to go ahead and use it. It also appears that the top of the ladder had been secured with wires, and that these too had become loosened, rendering the ladder shaky. Additional complaints were that the rungs had become coated with grease, and that the ladder did not extend high enough, with the result that plaintiff, in attempting to get upon it, was compelled to work his way down to the lower part of the crane, and thence step over upon the third rung from the top. It was while his left foot was yet upon the crane and he was in the act of reaching over to take hold of the ladder, that the ladder moved, causing him to fall. There was some evidence that another ladder in defendant's establishment was so placed...