Eastridge v. Kennett Cypress & Hardwood Lumber Company

• Decision Date: 02 March 1915
• Citation: 174 S.W. 462,188 Mo.App. 438
• Parties: WARREN EASTRIDGE, Respondent, v. KENNETT CYPRESS & HARDWOOD LUMBER COMPANY, Appellant
• Court: Missouri Court of Appeals

174 S.W. 462

188 Mo.App. 438

WARREN EASTRIDGE, Respondent, v. KENNETT CYPRESS & HARDWOOD LUMBER COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 2, 1915

Appeal from Dunklin Circuit Court.--Hon. W. S. C. Walker, Judge.

Judgment reversed and cause remanded.

Fort & Zimmerman for appellant.

(1) The court erred in overruling defendant's demurrer to the evidence at the close of plaintiff's case and at the close of all the evidence in the case--(a) There is no evidence that the water had been down long enough to clean off the yard, or that the end of the plank with the protruding nail was sufficiently exposed to become noticeable, without the exercise of extraordinary care on the part of defendant. (b) Because there is no evidence that the water had been down long enough for defendant to discover such pieces of plank, as the exposed board in evidence, the water still standing in the low parts of the yard. (c) Because plaintiff assumed the risk of being injured on the piling yard in the manner charged in his petition, and because the danger of stepping upon a nail while working upon said pole and piling yard, or of being injured by a piece of plank or wood which might float upon defendant's yard from the woods, was a danger incident to plaintiff's employment and assumed by him. Wendall v. Railroad, 75 S.W. 689; Brandt v. Kansas City Breweries Co., 159 Mo.App. 568; Harris v. Railroad, 146 Mo.App 524; Jordan v. Railroad, 136 Mo.App. 192; Jones v. Pioneer Cooperage Co., 134 Mo.App. 324; Saversnick v. Schwatzchild & Sulzberger, 141 Mo.App 513; Rigsby v. Oil Well Sup. Co., 165 Mo.App. 523. (2) The court erred in giving instruction number 2 plaintiff, because: (a) Said instruction imposed upon defendant a higher duty than required by law, in that it bound defendant to the exercise of more than ordinary care, or extraordinary care, to furnish plaintiff a reasonably safe place in which to work. McElhiny v. Friedman Shelby Shoe Co., 158 Mo.App. 318; Henson v. Pascola Stave Co., 151 Mo.App. 234; Organ v. Railroad, 142 Mo.App. 248; Bennett v. Crystal C. L. Co., 146 Mo.App. 565; Bradley v. Railroad, 138 Mo. 293; Haas v. American Car & F. Co., 176 Mo.App. 314. (b) Because said instruction is not sufficiently specific to advise the jury as to what matters in evidence they would consider in passing upon defendant's negligence in failing to furnish plaintiff with a safe place to work. Delo v. Old Dominion M. Co., 141 S.W. 689; Schaff v. St. Louis Basket & Box Co., 151 Mo.App. 35; Allen v. St. Louis Transit Co., 183 Mo. 411; Hall v. Railroad, 165 Mo.App. 114. (3) The court erred in refusing defendant's instruction numbered 2a because: (a) There is no evidence that defendant knew, or had any knowledge, that the plank in question was on its pole and piling yard. (b) Because plaintiff alleges in his petition that defendant negligently and carelessly permitted toggles and other timber to become embedded in the wet, low and marshy ground, etc. Honea v. Railroad, 245 Mo. 621; 6 Words & Phrases Judicially Defined, p. 5317; State v. Robinson, 55 Minn. 169. (4) The court erred in refusing to give instruction numbered 2b offered by the defendant. See authorities cited upder point 3. (5) The court erred in refusing instructions numbered 2c by the defendant, because said instruction properly declared the law of the case and submitted the defense to which defendant was entitled under the pleading and the evidence. See authorities submitted under point 3.

Bradley & McKay for respondent.

(1) (a) Appellant cannot complain of its first assignment, that the court erred in overruling its demurer at the close of plaintiff's case, because if there is any evidence tending to make an issue of fact, properly raised by the pleadings, these issues are questions for the jury. Appellant has failed to make the action of the trial court in overruling its demurrer at the close of all the evidence, one of its assignments here, which it must do in order to bring this court's attention to the error complained of. It is only when the evidence is such that there can be no two opinions on the subject that the court should sustain a demurrer. Saller v. Shoe Co., 130 Mo.App. 722; Erickson v. Railroad, 171 Mo. 647; Campbell v. Railroad, 175 Mo. 161; Holden v. Railroad, 108 Mo.App. 665; Charlton v. Railroad, 200 Mo. 441; Johnson & Machine Co. v. Ice & Refrigerating Co., 143 Mo.App. 455; King v. Railroad, 143 Mo.App. 291; Bradford v. Railroad, 136 Mo.App. 705; Lawrence v. Ice Company, 119 Mo.App. 323; Doyle v. M. K. & T. Trust Co., 140 Mo. 15; O'Melia v. Railroad, 115 Mo. 205; Kinlan v. Railroad, 216 Mo. 155; Heine v. Railroad, 144 Mo.App. 443; Bluedorn v. Railroad, 108 Mo. 448; Baird v. Railroad, 146 Mo. 281; Hicks v. Hammond Packing Co., 171 S.W. 937. (b) Respondent concedes that he assumed the ordinary risks incident to the employment in which he was engaged, but he did not assume any risks which it was his master's duty to eliminate or avoid by the exercise of ordinary care. It was his master's duty to exercise ordinary care to furnish him a reasonably safe place to work. Plaintiff testified that this piece of timber in which the nail was, could have been seen, had they been looking for it; therefore if appellant had exercised ordinary care in examining or inspecting its yard, this nail would have been discovered, and plaintiff's injury would not have been caused, and he did not assume this risk. Charlton v. Railroad, 200 Mo. 433; Blanton v. Dold, 109 Mo. 75; Doyle v. M. K. & T. Trust Co., 140 Mo. 12; King v. Railroad, 143 Mo.App. 298; Brady v. Railroad, 206 Mo. 509; Garner v. Met. Street Ry. Co., 128 Mo.App. 405; Settle v. Railroad, 127 Mo. 336; Lee v. Railroad, 112 Mo.App. 372; Bradley v. Northern Central Coal Co., 167 Mo.App. 177; Self v. White, 155 S.W. 840; Rowden v. Mining Co., 136 Mo.App. 376; Shortel v. City of St. Joe, 104 Mo. 114; Selfeinstein v. Medart, 136 Mo. 595. (2) (a) The court did not err in giving instruction number 2. The court directed the jury that before they could find for the respondent they must find that the appellant had been guilty of negligence and carelessness in the discharge of its duty to exercise ordinary care to furnish respondent a reasonably safe place to work. Its duty was to exercise ordinary care to furnish respondent a reasonably safe place to work; if it was negligent and careless in the discharge of this duty which the jury found it was, then of course it did not exercise ordinary care, because the existence of negligence implies the absence of care. There was no duty imposed on the appllant company by this instruction, not imposed by the law. Blanton v. Dold, 109 Mo. 75; Doyle v. M. K. & T. Trust Co., 140 Mo. 12; Brady v. Railroad, 206 Mo. 509; Baxter v. Campbell Lumber Co., 171 S.W. 955. (b) If the master is negligent the question of the assumption of risk is eliminated and the question of contributory negligence arises. The appellant did not plead contributory negligence, nor did it submit that issue by the instructions offered. The servant does not assume risks occasioned by his master's negligence. King v. Railroad, 143 Mo.App. 298; Brady v. Railroad, 206 Mo. 509; Settle v. Railroad, 127 Mo. 336; Lee v. Railroad, 112 Mo.App. 372; Williamson v. Transit Co., 202 Mo. 345.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

--This is a suit for damages accrued on account of personal injuries received through defendant's negligence. Plaintiff recovered and defendant prosecutes the appeal.

Plaintiff was injured by stepping upon a rusty nail while in defendant's employ in its pole and piling yard. Defendant is engaged in the pole and piling business and maintains a yard of considerable proportions adjacent to the railroad in the lowland known as the Little River Swamp. The pole and piling yard is a cleared and level space, consisting of about three acres, into which poles and piling are floated during the high water season. It appears the poles and piling are felled in the forest and floated through the low country during the high water season in the spring, to defendant's yard. Afterwards, when the water subsides, the yard is cleaned off and the poles and piling dressed for use and loaded on the cars for shipment. The piling timbers are fastened together for the purpose of floating them to the yard, by means of toggles, which, it is said, are pieces of timber nailed to the poles or piling. These toggles with nails therein are knocked loose from the poles and piling in the yard and necessarily accumulate thereabout, and it appears defendant causes them to be picked up and burned, as, otherwise, they would be lodged in the surface of the yard when wet and muddy, and expose the employees to more or less danger through stepping on the nails therein contained. Defendant maintains a steam engine and a large drum on the yard, by means of which, together with a wire cable operated over the drum, it "snakes" the poles and piling timbers about the yard and to the place where it is desired to dress or load them. The wire cable winds around the drum and when a piling is once "snaked" to position, in order to attach the cable to another, it is necessary for the men to draw it backwards into the yard.

At the time the plaintiff was injured, he, in company with a fellow workman, was drawing the cable from the drum backwards into the yard, with a view of making it fast to a pole or piling to be "snaked" for-ward. About forty yards of the cable had unwound at the time, and plaintiff and his companion were walking backwards pulling on it with more or less force. While thus engaged, plaintiff stepped upon a rusty wire nail protruding from a two-by-six oak plank and received the injury complained of. It is said the nail was a...