Davis v. National Refining Co.

• Decision Date: 07 April 1927
• Docket Number: No. 4074.,4074.
• Citation: 294 S.W. 114
• Parties: DAVIS v. NATIONAL REFINING CO.
• Court: Missouri Court of Appeals

294 S.W. 114

DAVIS v. NATIONAL REFINING CO.

No. 4074.

Springfield Court of Appeals. Missouri.

April 7, 1927.

Rehearing Denied May 16, 1927.

Appeal from Circuit Court, Butler County; Charles L. Ferguson, Judge.

Action by George W. Davis against the National Refining Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Henson & Woody, of Poplar Bluff, for appellant.

Phillips & Fulbright, of Poplar Bluff, for respondent.

BRADLEY, J.

This is an action for personal injury. The cause was tried to a jury. Plaintiff recovered, and defendant appealed.

The negligence alleged is that defendant failed to exercise ordinary care to furnish plaintiff a reasonably safe place to work. The answer is a general denial and pleas of assumption of risk and contributory negligence. The reply is a general denial.

Error is assigned: (1) On the refusal of defendant's instruction in the nature of a demurrer to the evidence at the close of the case; (2) on the instructions; and (3) on the admission and exclusion of evidence.

Defendant was engaged in Poplar Bluff, Mo., in distributing gasoline and oils. The gasoline was stored in three upright cylindrical tanks 18 feet high and 16 feet in diameter. These tanks were about 13 inches apart, and were arranged in a row north and south. The one on the north is called the first tank. The center of the roof of the tanks is 19 1/4 inches higher than the edge. There is a manhole in each tank 12 inches from the edge and 18 inches in diameter. The manholes extend a short distance above the roof and were covered by a metal lid weighing 30 or 40 pounds. A part of plaintiff's duties was to gauge each tank every afternoon after the tank wagon had gotten its last load. To do the gauging plaintiff ascended the first tank by means of a ladder on the west side thereof, and used a 24-foot scale rod to do the measuring or gauging. After gauging the first tank he walked on the roof thereof to the second, and so on to the third.

January 6, 1925, plaintiff slipped from the roof of the first tank, fell to the ground and received the injuries for which he sues. He described the circumstances as follows:

"On the morning of the 6th I was closing my report for the previous day's business, and, in closing it up, I discovered a shortage in gasoline. I tried to find if I had made any mistake in my figures, and I could not find any, so I concluded that I had made a mistake in measuring the day before, and I went to measure this tank again. I climbed the ladder about 7:30 in the morning, but found the top of the tank frosty and I did not go up. About 9:30 or 10 I again went up the ladder. At that time the east side of the top was dry, but the west side was still wet. Went upon top of the ladder holding to the 2x4 which was on the side of the ladder. I was facing east when I was holding to the ladder, but when I got on top east of the manhole I was facing west. This hole is about 25 or 30 inches from the edge of the top of the tank. I generally kept the measuring stick setting down by the side of the tank, and I would pull it up after I got on the tank—generally had to use both hands. Never tried to pull the stick up until after I had gotten on the tank and got the lid off the hole. At the time I got hurt, I was trying to get my hand into my left hand front pocket under my jumper, where I carried my keys. I had to get them before I could take the lid off the manhole. I raised my right hand off of the ladder and straightened up to get my hand in my pocket. My right foot slipped, and I threw out my right hand and grabbed the north side of the ladder and was aiming to grab the south side with my left hand, but grabbed the measuring rod instead. That let me swing clear around and sorter knocked the wind out of me. I felt my hands slip, and I tried to get back up, but I could not and I had to let loose, fell to my feet, and they slipped out from under me and I hit on my left hip and back."

Defendant makes four contentions in support of the assignment based on the refusal of the instruction in the nature of a demurrer: (1) That it was not negligent respecting its duty to furnish plaintiff a reasonably safe place to work; (2) that plaintiff as a matter of law was guilty of contributory negligence; (3) that plaintiff assumed whatever risk he incurred while gauging the tanks; and (4) that plaintiff was manager of defendant's plant at Poplar Bluff and had full authority to make all necessary repairs, and failed to discharge his duty in that respect, and therefore cannot recover.

The four contentions mentioned are somewhat interrelated, but we shall consider them separately. If the record conclusively supported the fourth contention as we have stated, then it would not be necessary to consider the others, but since it does not we shall consider the propositions in the order stated and independently of each other.

It was defendant's duty to exercise ordinary care to furnish plaintiff a reasonably safe place to work. The roof of the tank from which plaintiff fell was of metal substance, and around the manhole the paint was worn off and it was slick. The center of the roof was 19 1/4 inches higher than the edge. The radius of the tank was 8 feet. The angle or slope of the incline was 11 1/3 degrees. Plaintiff's feet did not slip down and off the tank, but he says that his "right foot slipped and struck against my left and that caused me to fall." Plaintiff, at the time he slipped and fell, was standing, as we understand the record, immediately east of the manhole and was facing west. His heels were 3 or 4 inches apart, and his left foot was "a shade lower" on the roof than was his right. And, as stated, his right foot slipped and struck his left, and in the scramble for holds he fell. The whole story of the situation is told in the slope, the slick roof, and the proximity to the edge. We think that the question of defendant's negligence respecting its duty to furnish plaintiff a reasonably safe place to work was one for the jury. Edmondson v. Hotels Statler Company, 306 Mo. 216, 267 S. W. 612; Williamson v. Light & Power Co., 281 Mo. 544, 219 S. W. 902; Mueller v. Ralston Purina Co. (Mo. App.) 254 S. W. 720; Ryall v. City of Maplewood (Mo. App.) 201 S. W. 633; Woods v. Bishop Poultry Co. (Mo. App.) 259 S. W. 888; Wilson v. Peppard Seed Co. (Mo. App.) 243 S. W. 390; Cooper v. City of Caruthersville (Mo. App.) 264 S. W. 46.

Was plaintiff as a matter of law guilty of contributory negligence? Plaintiff was in the employ of defendant from 1911 to 1915, and again from November, 1924, until a shoreline after he was injured. During these years he performed about the same character of service. He had not fallen from a tank before, but he realized that there was some element of danger incurred while gauging the tanks. About a month prior to his fall he suggested to "defendant's station supervise Amo, that "there ought to be a platform built, as a person was likely to slip off the roof and fall." While plaintiff appreciated that there was some danger of slipping on or from the roof, he would not be guilty of such negligence as to bar recovery unless the danger was so obvious and threatening that no reasonably prudent person would have encountered it. It is our opinion that the question of plaintiff's contributory negligence was properly...