Dietzman v. St. Louis Screw Company

• Decision Date: 31 July 1923
• Citation: 254 S.W. 59,300 Mo. 196
• Parties: LENA DIETZMAN v. ST. LOUIS SCREW COMPANY, Appellant
• Court: Missouri Supreme Court

254 S.W. 59

300 Mo. 196

LENA DIETZMAN v. ST. LOUIS SCREW COMPANY, Appellant

Supreme Court of Missouri, First Division

July 31, 1923

Appeal from St. Louis City Circuit Court. -- Hon. Frank Landwehr Judge.

Affirmed.

Kelley Starke & Moser and Charles E. Morrow for appellant.

(1) Defendant's demurrer to the evidence should have been given. The defendant was guilty of no negligence. Modlagl v. Iron Co., 248 Mo. 587; Armour v. Hahn, 111 U.S. 313; Huskey v. Boiler Co., 187 Mo.App. 438; Broomfield v. Const. Co., 118 Mo.App. 254; Kleine v. Shoe Co., 91 Mo.App. 102; Forbes v Dunnavant, 198 Mo. 193; Cooney v. Gas Light Co., 186 Mo.App. 156; Miller v. Railroad, 175 Mo.App. 349; Bennett v. Lime Co., 146 Mo.App. 572; 3 Labatt on Master & Servant (2d Ed.) sec. 924. Plaintiff's deceased husband was defendant's foreman in charge of that department of the plant and undertook to make this temporary repair in his own way and in the absence of the master, and assumed the risk and cannot recovery. Harbacek v. Fulton Iron Works Co., 229 S.W. 803; Johnson v. Brick & Coal Co., 276 Mo. 53; Patrum v. Railroad, 259 Mo. 121; Morris v. Pryor, 272 Mo. 350; Chrismer v. Bell Tel. Co., 194 Mo. 189; Powers v. Loose-Wiles Co., 195 Mo.App. 430. Plaintiff's instruction numbered one is erroneous. Authorities supra, and Longree v. Mfg. Co., 120 Mo.App. 478; Bowen v. Railroad, 95 Mo. 268. (3) The court erred in refusing defendant's Instruction 12 on the question of assumption of risk. It was at least a question for the jury as to whether or not deceased's injuries were the result of a risk and danger inherent in the work he was performing, and that he fell from the ladder as the result of an accident without any negligence on the part of the defendant. Harbacek v. Fulton Iron Works Co., 229 S.W. 803; Johnson v. Brick & Coal Co., 276 Mo. 53; Patrum v. Railroad, 259 Mo. 121; Morris v. Pryor, 272 Mo. 350; Chrismer v. Bell Tel. Co., 194 Mo. 189; Powers v. Loose-Wiles, 195 Mo.App. 430; West v. Hollady, 196 S.W. 403; Thomas v. Railroad, 109 Mo. 187; Fogus v. Railroad, 50 Mo.App. 272. (4) The court erred in refusing defendant's Instruction 13, which told the jury that if the deceased was injured solely by reason of an accident, the plaintiff cannot recover. Doody v. Cal. Woolen Mills Co., 216 S.W. 535; Sawyer v. Railroad, 37 Mo. 240; Henry v. Ry. Co., 113 Mo. 525; Feary v. Met. Ry. Co., 162 Mo. 75; Felver v. Railroad, 216 Mo. 208. (5) The court erred in refusing defendants Instructions 5, 6 and 9 withdrawing assignments of negligence in the petition upon which the plaintiff was not entitled to recover. And especially defendant's instruction numbered 9, withdrawing the assignment of negligence that the defendant had failed to provide a screening, hand-rail or guard around the hopper or platform and upon which the court had permitted the plaintiff to introduce evidence. Russell v. Barcroft, 1 Mo. 663; Higgins v. Ry. Co., 197 Mo. 300, 314; Roseman v. U. Rys. Co., 197 Mo.App. 342; Allen v. Lbr. Co., 171 Mo.App. 503.

Eagleton & Habenicht for respondent.

(1) The demurrers to the evidence were properly overruled. (a) The appellant cannot adopt a new theory on appeal. Lowenstein v. Railroad, 134 Mo.App. 24; Fulwider v. Trenton Gas Co., 216 Mo. 582, 594; Berger v. Storage Co., 136 Mo.App. 36. (b) It was not necessary that the defendant should be able to anticipate the happening of the very occurrence which resulted in the injury. Washburn v. Laclede Gas Light Co., 202 Mo.App. 115; Dean v. Railway Co., 199 Mo. 411; Buckner v. Horse & Mule Co., 221 Mo. 710; Harrison v. Light Co., 195 Mo. 629; Hoepper v. Southern Hotel Co., 142 Mo. 378; Daneschocky v. Sieble, 195 Mo.App. 470; Wright v. Terminal Ry., 195 Mo.App. 480. (c) The rules pertaining to places of work which are continually changing, and where transitory perils are encountered, are not applicable to the facts involved in the case at bar. (d) There was evidence of negligence on the part of the master, and Dietzman did not assume the risk. Kuhn v. Lusk, 281 Mo. 338; Deming v. Alpine Ice Co., 214 S.W. 273; Fish v. Railroad, 263 Mo. 126; Williams v. Pryor, 272 Mo. 621; Curtis v. McNair, 173 Mo. 270; Jewel v. Bolt & Nut Co., 231 Mo. 176; Williamson v. Union Elec. Co., 281 Mo. 544. (2) No error was committed in admitting evidence "that a rail, guard or screening could have been placed around the platform in question." Probst v. Basket & Box Co., 200 Mo.App. 582. (3) No error was committed in giving plaintiff's instruction numbered 1. The instruction was proper and submitted the necessary essentials to a recovery. Distinguishing the cases of Longree v. Mfg. Co., 120 Mo.App. 478; Bowen v. Railroad, 95 Mo. 268.

OPINION

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. Dietzman 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 at nights, and in which room he was headman 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 room 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 in St. Louis, Missouri. 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 say: "We consider 'Appellant's Statement of Facts' a fair and reasonable statement of 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 co-mingled 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. The petition thus charges the alleged negligence of the defendant:

"Plaintiff further states that on or about the 7th day of August, 1919 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 fall or be thrown from a ladder which was resting on a hopper, or platform, thereby dropping a distance of about forty-five feet, to a concrete floor located below said hopper or platform, and to sustain serious injuries, which resulted in the death of said William Dietzman on the day following, to-wit, August 7, 1919. 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 the accident, necessarily required him to lean over, and away from said ladder, and that on account of said fact there was great danger of him falling or being thrown off said ladder, and nevertheless defendant failed and omitted to furnish or provide any screening, hand-rail 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, hand-rail 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...