Deming v. Alpine Ice Co.

• Decision Date: 05 May 1919
• Docket Number: No. 13162.,13162.
• Citation: 214 S.W. 271
• Parties: DEMING v. ALPINE ICE CO.
• Court: Missouri Court of Appeals

214 S.W. 271

DEMING v. ALPINE ICE CO.

No. 13162.

Kansas City Court of Appeals. Missouri.

May 5, 1919.

Appeal from Circuit Court, Jackson County; Daniel B. Bird, Judge.

"Not to be officially published."

Action by A. W. Deming against the Alpine Ice Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Sherman & Landon, of Kansas City, for appellant.

F. M. Lowe and Ira B. Burns, both of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5,000, and defendant has appealed.

Defendant's first point is that its demurrer to the evidence should have been sustained; it being contended that the way in which the accident is claimed to have occurred is contrary to physical laws.

Taking the evidence in its most favorable light to plaintiff, it shows that on the night of February 14 and 15, 1917, plaintiff was in the employ of the defendant, which operated an ice plant in North Kansas City, Mo. Defendant was constructing and had about completed a large storage house to the south of its old plant. A door led from the old storage house into the new one. On the evening of February 14, 1917, defendant's vice principal instructed plaintiff that

"There is orders left here that you was to go down to the new storage room and fire up these salamanders."

It appears that the salamanders were small open vessels in which were built charcoal fires to dry out the plastering in the new storage house.

About 3 a. m. on the morning of February 15, 1917, plaintiff started into the new storage house to fire up the salamanders. The means of ingress and egress to the new storage house was through said door connecting the old storage house with the new one. Immediately in front of this door in the new storage house was an elevator shaft which had a platform constructed in it about 26 to 30 inches below the sill of the door. This platform was 6 feet long and 3 feet wide, the length being north and south, and the width east and west. It consisted of several 2×8 boards laid loosely lengthwise of the platform. These boards were so loose that they rattled when stepped upon. The ends of the boards rested upon 2×6 or 2×8 supports nailed to uprights at the corners. These were the only supports under the platform. The platform was about 12 feet above the floor of the new storage house and extended a greater width than the door leading into the same. Below the platform the shaft had been boarded up on the east side, but was open on the other three sides and on all four sides above the platform. The floor of the new storage house below the platform was made of concrete. Plaintiff had never before been in the new storage house. At the time of the accident the new storage house was not lighted, but plaintiff carried a lantern. Plaintiff stated that he supposed that there was an elevator shaft present, and that when he opened the door into the new storage house he saw, with the aid of his lantern, that there was a platform present, and "I thought everything was regular and I stepped in"; that he stepped first with his right foot, and instantly the board on which he had placed that foot gave way, and the last that plaintiff remembered was that he started to fall forward, headfirst. He knew nothing more until two weeks afterwards, when he was in a hospital.

Plaintiff testified that he heard no board break. It is plaintiff's theory that the board slipped or tipped up. Plaintiff was found a few hours after the accident from 80 to 100 feet northeast of the platform, with a laceration, about an inch long and somewhat irregular, in front and about an inch and a half above his ear on the right side of the head. His skull was fractured. The lantern was found about 7 feet southwest of the corner of the platform, and a hammer was found "nearly right under the platform, about 3 feet from the elevator shaft," in a southwesterly direction therefrom. Plaintiff's pocketbook, knife, and keys were found on the floor "over there where he was." There was a board about 6 feet long, and similar to the ones in the platform, lying on the floor to the south of the elevator shaft. How far this board was from the elevator shaft the evidence does not disclose. One witness testified: "Well, it was right out from the platform, right down from the platform." "It was almost in front of the platform." No broken boards were found, and no supports holding the platform had given way or were broken. An examination of the platform on the morning after the injury showed that there was a vacant space in the platform about 8 or 10 inches in width extending the entire length of the platform, and that this opening was immediately in front of the door. A witness who had examined the platform after the accident said: "It looked like a board had dropped out."

Defendant's contention that the way in which plaintiff claimed that the accident happened is contrary to physical laws is based upon the fact that plaintiff was found 80 to 100 feet southeast of the platform; that his lantern was 7 feet southwest from the platform; that plaintiff's pocketbook, knife, and keys were lying on the floor very near where plaintiff was found; and that the board which is claimed gave way with plaintiff's weight was not found immediately under the platform, but to the south thereof. Defendant has not advanced any theory as to how plaintiff could have been injured in any way other than that in which he claimed he was, but there seems to be some intimation that he might have been slugged while in the basement of the building.

We see nothing against physical laws in the way plaintiff claimed he was hurt. There was no expert medical testimony on the point as to whether an unconscious man might not drag himself or walk 80 to 100 feet after having received a blow on the head, but common experience tells us that such a...