Cummings v. Union Quarry and Construction Co., a Corp.
| Decision Date | 03 December 1935 |
| Parties | RAY CUMMINGS, (PLAINTIFF) RESPONDENT, v. UNION QUARRY AND CONSTRUCTION COMPANY, A CORPORATION, (DEFENDANT) APPELLANT |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of City of St. Louis.--Hon. Chas. B Williams, Judge.
AFFIRMED.
Judgment affirmed.
Fordyce White, Mayne & Williams, E. C. Hartman and G. C. Stribling for appellant.
(1) The trial court erred in overruling defendant's demurrer to the evidence because the undisputed testimony showed that plaintiff's cause of action came under the Missouri Workmen's Compensation Act. (a) Plaintiff was an independent contractor injured on the defendant's premises. R. S. Mo., Sec. 3308; Simpson v. New Madrid Stave Co., 52 S.W.2d 615, l. c. 616, 227 Mo.App. 331; Woodruff v. Superior Minerals Co., 70 S.W.2d 1104 (St. Louis Court of Appeals); Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769, l. c. 771. (b) Plaintiff was doing under contract work which was "an operation of the usual business which defendant carried on on its premises." R S. Mo. 1929, Sec. 3308; March v. Bernardin, 76 S.W.2d 706 (K. C. Court of Appeals 1934); McFall v. Barton-Mansfield Co., 330 Mo. 110, 69 S.W.2d 911; Utah Copper Co. v. Industrial Commission, 57 Utah 118, 193 P. 24, 13 A. L. R. 1367; Durrin v. Mehl, 204 N.W. 22, 163 Minn. 325; Holmen Creamery Assn. v. Industrial Commission, 167 N.W. 808, 167 Wis. 470. (c) The Workmen's Compensation Act being "wholly substitutional" supplanted any other rights which plaintiff might have had at common law against defendant. De May v. Liberty Foundry Co., 327 Mo. 495, l. c. 505, 37 S.W.2d 640; Langston v. Selden-Breck Construction Co., 37 S.W.2d 474 (St. Louis Court of Appeals). (2) The court erred in refusing to sustain defendant's demurrer to the evidence because even at common law plaintiff's evidence did not make a case for the jury. (a) Plaintiff was an independent contractor and as such the defendant owed the same duty to plaintiff as to an invitee, and no other. Stein v. Battenfeld Oil & Grease Co., 39 S.W.2d 345 (Supreme Court of Missouri); Simmons v. Kansas City Jockey Club, 66 S.W.2d 119; Abstract pages 2, 9, 25 and 27. (b) The testimony, even when taken most favorable to plaintiff, fails to show a perilous condition known to the defendant, and unknown to the plaintiff, but, on the contrary, the evidence indicates that the work which plaintiff undertook was obviously dangerous and the risks were assumed by the plaintiff who made his own tests before undertaking the work. Stein v. Battenfeld Oil & Grease Co., supra; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Cash v. Sonken-Galamba Co., 17 S.W.2d 927, 322 Mo. 349; Gilliland v. Bondurant, 59 S.W.2d 679, 332 Mo. 881.
Foristel, Mudd, Blair & Habenicht for respondent.
(1) The work being done by respondent at the time of his injury was neither "an operation of the usual business" which appellant there carried on nor was it "work which is in the usual course" of its said business. Oil Men's Reciprocal Assn. v. Gilliland, 291 S.W. 197; Halbrook v. Hotel Co., 200 Mich. 597; State ex rel. v. District Court, 138 Minn. 103; London & Lancashire G. A. Co. v. Industrial Acc. Comm., 173 Cal. 642; Hemphill v. Order of Commercial Travelers, 178 A.D. 342; Miller v. Power Co., 66 Montana, l. c. 375; Kelly v. Industrial Comm., 326 Ill. 320; Maryland Casualty Co. v. Pillsbury, 172 Cal. 748; Stansbury v. Industrial Acc. Comm., 36 Cal.App. 68. (2) But respondent was an independent contractor doing repair work as contemplated in section (c) and hence by 3308 (c) excepted out of the provisions of 3308 (a). Simpson v. Stave Co., 227 Mo.App. 331. (3) Although respondent was an independent contractor, yet as he was using the instrumentality furnished him by appellant as a place to do his work, the latter owed him the same duty of care which would be due to an ordinary employee. Jewel v. Bolt & Nut Co., 245 Mo. 720 (In Banc); Burch v. Railway Co., 328 Mo. 59, l. c. 68; Clark v. Railroad, 234 Mo. 396 (In Banc); Ryan v. Railroad, 190 Mo. 621; Geisman v. Mo. Edison Electric Co., 173 Mo. 654; Cursey v. Conrad, 30 S.W.2d 167; Osby v. Torleton, 85 S.W.2d 27 (Mo.) (1). (4) The collapse of the guy wire or cable while respondent was at work upon it made a prima facie case of negligence on the part of appellant under the doctrine of res ipsa loquitur. Mayne v. K. C. Rys. Co., 287 Mo. 235; Meade v. Supply Co., 318 Mo. 350; Thompson v. Railway Co., 243 Mo. 336; Lober v. Kansas City, 74 S.W.2d 815 (Mo.) ; Glossip v. Kelly, 67 S.W.2d (K. C.) 513; Klebe v. Distillery Co., 207 Mo. 480; Herries v. Bond Stores, 84 S.W.2d (St. L.) 153.
Becker, J., not sitting.
This is an action for damages for personal injuries sustained by plaintiff, Ray Cummings, while engaged in the performance of a contract independently entered into between him and defendant, Union Quarry and Construction Company. Tried to a jury, a verdict was returned in plaintiff's favor for the sum of $ 1,250; and defendant's appeal from the judgment entered on the verdict has followed in the usual course.
Defendant's business, as its name would imply, was that of quarrying and selling rock which it obtained from its quarry located at Marcus and Natural Bridge Avenues in the City of St. Louis. As a part of its equipment it had a derrick or mast some 40 feet in height, which was held in its upright position by steel cables extending from the derrick out to and slightly beyond the outer edges of the quarry, where they were secured to the top of the quarry walls by being attached to rods set in a concrete base and so constructed as to permit either the lengthening or shortening of the cables by turning the mechanism at the top of the rods through which the cables ran. Being of steel, and because of their constant exposure to the weather, it was necessary that the cables be greased about every two years to avoid rust; and it was a such task that plaintiff was engaged when injured, his work being done pursuant to a contract with defendant by the terms of which plaintiff had agreed to complete the job for a fixed price, free from any direction or control on defendant's part save as to the final result of the work.
Before beginning the work, plaintiff not only made some casual inspection of the cables on his own account, but inasmuch as the derrick had but recently been moved so as to necessitate a readjustment of the lengths of its several supporting cables, he also inquired repeatedly of defendant's superintendent about the condition of the fastenings, and was in each instance assured that they were secure. Under plaintiff's evidence, such assurance of safety extended particularly to the cable upon which he was working while injured, plaintiff having made special inquiry about the condition of such cable when, in the course of his movements around the premises, he had observed that it had been spliced some 20 or 30 feet out from the quarry wall, with the ends held together and secured by a series of metal clamps.
While plaintiff was suspended from such cable in his basket or chair at a point about 90 feet out from the derrick and 100 feet or so above the bottom of the quarry, he felt the cable begin to slip, and momentarily thereafter it came entirely loose from its attachments, swinging and twisting inwards and carrying plaintiff along with it in a course which threatened to cause him to crash against the quarry wall. To escape such fate he undertook to slide down the cable as it curled and fell; and fortunately he was successful in saving himself, finally landing at the bottom of the quarry with injuries which, while painful, luckily consisted of nothing more serious than burns and scratches upon his hands and legs.
As regards the cause of the accident, plaintiff himself testified that a subsequent investigation revealed that the cable had slipped apart at the point where the spliced ends had been clamped together, while the superintendent testified that a break had occurred at the thimble or point in the mechanism where the cable was fastened to the rod inserted in the ground. The superintendent further admitted that the cable had but recently been subjected to a very heavy strain while the derrick was being moved; and that after the derrick had been set up in its new position and the splicing of the cable accomplished, he had inspected the equipment, but not in such a manner as to test the cable's strength.
In his petition plaintiff charged negligence generally, alleging that the quarry and its equipment were the property and in charge of defendant, and that his contract with defendant was limited to the greasing and painting of the cables, and did not include general repair work thereon nor examination thereof, particularly with reference to the attachments and fasteners.
The answer was a general denial, coupled with a plea that plaintiff's remedy, if any, was under the local compensation law, and that he was not entitled to maintain this action at common law against defendant.
Upon the issues as thus joined the case came on for trial; and now defendant assails the judgment which went against it upon the grounds of the alleged insufficiency of the whole evidence to have made a case for the jury and of error assigned to the giving of plaintiff's principal instruction covering his theory of the case.
As the chief consideration for its claim that the demurrer to the evidence should have been sustained, defendant argues that plaintiff, though concededly an independent contractor, was nevertheless injured while on its premises and engaged in work which should properly be characterized as an operation of its usual business conducted on such premises,...
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