Dietzman v. St. Louis Screw Co.

• Decision Date: 31 July 1923
• Docket Number: No. 22358.,22358.
• Citation: 254 S.W. 59,300 Mo. 196
• Parties: DIETZMAN v. ST. LOUIS SCREW CO.
• Court: Missouri Supreme Court

254 S.W. 59

300 Mo. 196

DIETZMAN v. ST. LOUIS SCREW CO.

No. 22358.

Supreme Court of Missouri, Division No. 1.

July 31, 1923.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Action by Lena Dietzman against the St. Louis Screw Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Kelley, Starke & Moser and Charles E. Morrow, all of St. Louis, for appellant.

Eagleton & Habenicht, of St. Louis, for respondent.

GRAVES, P. J.

Action for the death of William Dietzman, which death is alleged to have been occasioned by the negligence of the defendant. The plaintiff is the widow of deceased, William Dietzman. Dieztman was an employee of defendant and fell from a ladder and was killed in the act of repairing machinery in the room wherein he worked nights, and in which room he was head man or foreman during the shift of his work. With deceased was one Lomax, who assisted him in the work. `The place of work was what was known as the coal mom of defendant's plant. Defendant is engaged in the manufacture of screws, bolts, nuts, washers, bar iron, and other iron products 'in the roller mills conducted by it St. Louis, Ho. The exact situation is one difficult of description, but an attempt is made to give an accurate description by learned counsel for defendant. Counsel for respondent, in their short statement, my:

"We consider "appellant's Statement of Facts' a fair and reasonable statement the material facts in controversy, with the exception that we do not desire to be understood as consenting to statements of law and argument which are commingled with the statement of facts."

With this concession of counsel we shall feel free to borrow from appellant's statement such portions as we deem outline the facts, and especially such portions as explain the locus in quo at the time Dietzman fell and was fatally injured.

Upon a trial before a jury, the plaintiff had a verdict for $10,000, the amount for which she sued, and from the judgment upon that verdict defendant has appealed.

Petition thus charges the alleged negligence of the defendant:

"Plaintiff further states that on or about the 7th day of August, 1910, the deceased was in the employ of the defendant as a laborer, earning $40 per week; that while he was in the employ of said defendant, at its aforesaid roller mill, and while working within the line and scope of his employment, he was caused to fail or be thrown from a ladder which was resting on a hopper, or platform, thereby dropping a distance of about 45 feet, to a concrete floor located below said hopper or platform, and sustain serious injuries, which resulted in the death of said William Dietzman on the day following, to wit, August 7, 131,9. Plaintiff further states that the said injuries and death of said William Dietzman, plaintiff's deceased husband, were caused by the negligence and carelessness of the defendant in this, to wit:

"That defendant negligently and carelessly failed to exercise ordinary care in furnishing plaintiff's said husband with a reasonably safe place in which to work, in that he was ordered, directed, and caused to work on a ladder which was located close to the edge of said hopper, or platform, and at a place where it became necessary for him to lean over, and away from said platform, or hopper, thereby entailing great danger to plaintiff's said husband. That defendant negligently and carelessly failed to use ordinary care to provide any platform between the hoppers, or to extend said hopper, or platform, in such a manner that it would have been possible under the circumstances for the plaintiff's said husband to place the `ladder, on which he was required to work, immediately under the work which he was required to do, and in such event would have made it possible for the plaintiff's said husband to have done the work without leaning over, and endangering his life and limbs as aforesaid.

"Plaintiff further states that the defendant knew, or by the exercise of ordinary care could have known, that the work which the plaintiff's said husband was required to do, and which he was doing at the time of accident, necessarily required him to lean over, and away from said ladder, and that on account of said fact there was great danger of his falling, or being thrown off said ladder, and nevertheless defendant failed and omitted to furnish or provide any screening, handrail, or guard around the hopper, or platform, so that plaintiff's said husband could have done the work in safety, and when the defendant knew, or by the exercise of ordinary care could have known, that it was practicable to place a screening, handrail, or guard around the place where he was required to work, and prevented plaintiff's said husband from falling to the concrete floor as aforesaid. That defendant negligently and carelessly maintained and provided a bolt in the iron arm of a butterfly valve axle, when said bolt was so defective that it would not hold the said iron arm in proper place or position, and would permit said iron arm to move out, and away from said butterfly valve axle, when in the exercise of ordinary care defendant could have so adjusted said iron arm that it would not move out, and away from said axle, and would have been held stationary onto said axle. That defendant negligently and carelessly tied said iron arm overhead by means of a rope which permitted said iron arm to swing, or move while in the course of adjustment, thereby entailing great danger to the plaintiff's said' husband while upon said ladder attempting to adjust said iron arm, That defendant was negligent and careless in ordering plaintiff's said husband to do the character of work above described, when it knew, or by the exercise of ordinary care would have known, that the work under the circumstances, due to the defects, and lack of guards and safety appliances as aforesaid, was highly dangerous.

"Plaintiff further states that while her said husband was upon said ladder attempting to adjust said iron arm to said butterly valve axle, said iron arm swung out, and her said husband was thus and thereby pulled, jerked, thrown, and caused to fall from the ladder to the concrete floor as aforesaid. That he was so thrown, jerked, caused to fall, and was killed, by reason of and on account of the aforesaid acts of negligence and carelessness on the part of the defendant."

The answer was (1) a general denial, and. (2) plea of contributory negligence, which specifically set out the alleged negligent acts of the deceased, which was alleged to have contributed to his injury and death. Reply was a general denial.

From the statement of appellant's counsel we borrow these details of facts "William Dietzman, plaintiff's husband, on the 7th day of August, 1919, was in the employ of the defendant as a night foreman at its plant. He was in charge of the operation of the plant in which he worked, and it was his duty, as the foreman of the defendant, to make and cause to be made any repairs which might become necessary while he was on duty. In the conduct of its business the defendant maintained a coal pulverizer. The coal was pulverized by machinery, and placed in hoppers or bins by means of an elevator which raised it to a certain height and poured it into chutes leading to the hoppers or bins. There were two hoppers or bins, known as No. 1 and No. 2, which were located below a platform 22 feet above the concrete floor of the building. A little over 12 feet above this platform there was extended from the elevator a chute which carried the coal for a short distance and then branched into two chutes leading to the hopper below. There was a device known as a butterfly valve placed in this chute, and was so constructed that when it was turned in one position it closed one of the chutes and left the other open, and caused the pulverized coal to pass through the other chute and when shifted in another position, would cause the pulverized coal to pass through the chute from which it had been removed. This valve was placed on a metal axle about one inch in diameter, and the end of this axle extended beyond the side of the chute for a distance of about six inches, and on the end of this axle there was placed an arm, called the butterfly valve arm, which consisted of a piece of metal about 3 to 5 feet long, 1½ inches wide and a quarter of an inch thick, and weighed about 15 pounds. The axle of the butterfly valve was placed through an opening in the middle of this arm, and the arm extended about 2½ feet on either side of this axle. The arm was fastened to the axle by means of an iron pin which ran through the arm and also the axle. Ropes were attached to either end of the arm extending down to the floor, and, when one of these ropes was pulled downward, it would cause one end of the arm to' come down and the other to go up and shifted the valve inside of the chute. Above these hoppers or bins, and on the east side of the chutes, there was a platform about 3 feet wide and about 10 feet long, the north edge of which extended, according to the testimony of defendant, which was given by measurements from 1¾ to 2½ inches north of the axle of the butterfly valve; according to plaintiff's testimony, the north end of the platform was about 2 feet south of the axle of the butterfly valve, so that it was contended that when a ladder was placed near the north edge of this platform it would be necessary for a person standing upon this ladder to reach and lean over in order to reach the axle of the butterfly valve. About 10 feet above the first platform there was another platform or iron grating, the dimensions of which are not in evidence, but which extended even beyond the elevator which ran perpendicular on the north of the chutes, and which was located about 2½ feet above the axle of the butterfly valve, and was so located that the arm of the butterfly valve could not be turned clear around, but that when one end was pulled down,...