Farley v. Lehrack

• Decision Date: 03 March 1924
• Docket Number: No. 14924.,14924.
• Citation: 272 S.W. 987
• Parties: FARLEY v. LEHRACK.
• Court: Missouri Court of Appeals

272 S.W. 987

FARLEY v. LEHRACK.

No. 14924.

Kansas City Court of Appeals. Missouri.

March 3, 1924.

Rehearing Denied April 7, 1924.

Writ of Certiorari Quashed by Supreme Court June 6, 1925.

Appeal from Circuit Court, Jackson County; A. C. Southern, Judge.

"Not to be officially published."

Action by Sim Farley against Otto J. Lehrack. Judgment for plaintiff, and defendant appeals. Affirmed.

John D. Wendorff, of Kansas City, for appellant.

Hogsett & Boyle, of Kansas City, for respondent.

ARNOLD, J.

This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff through negligence of defendant.

Defendant, a contractor, was engaged in erecting an eight-story building in North Kansas City, Clay county, Mo., to be used as a flouring mill. Plaintiff was employed by defendant as a laborer under the direction of a foreman named Toner. On the day of the accident and a few minutes before its occurrence, on May 5, 1921, plaintiff wag working on the fifth floor, when he was directed by Toner to proceed to the fourth floor and remove some trash by the use of a shovel and a wheelbarrow. The trash consisted of brick, shavings, pieces of board, tin, and such articles as ordinarily accumulate in the course of building construction. The building in question was of reinforced concrete throughout, and plaintiff had been employed in and about the premises for a period of four or five weeks.

The evidence shows that in constructing the floors, numerous holes of varying shapes and sizes were left, extending through said floors for the purpose of providing passages for parts of mill machinery, such as belts, shafts, conveyers, etc. In addition to these, there were four other holes about 12 by 14 inches extending through the fourth, fifth, and sixth floors, substantially in the same relative position on each floor, designed for the insertion of timbers in providing spouts for conveying concrete used in constructing flour bins. When no longer required for such purpose, these timbers and spouts were removed and the holes left open until such time as they could be closed permanently. These holes were slightly larger at their upper than their lower dimension, and their edges were rough and uneven.

On the morning of the day in question and for some time prior thereto, plaintiff had been engaged in cleaning up rubbish on the fifth floor, when he was instructed by Toner, the foreman, to proceed to clean up the fourth floor. Plaintiff then went to the fourth floor and set about his work there. The main building extends north and south, and the fourth floor is divided into two rooms, of which the north room is the larger. At the southwest corner of the south room there was a chute through which plaintiff was instructed to dump the rubbish gathered up in the process of cleaning. Plaintiff's testimony is that one of the holes into which the timber previously had been placed was covered with a piece of scrap tin which was barely large enough to cover the opening; that the tin was rusty and somewhat covered with debris, thus rendering that particular hole invisible, as its surface resembled the general appearance of the floor. Plaintiff began work in the north room, filled the wheelbarrow with the first load, and was pushing it along toward the dumping chute, when, with his right foot, he stepped on the piece of tin which covered the hole above described, the tin gave way, and plaintiff's foot and leg went down through the hole, resulting in the injuries of which he complains.

The negligence charged in the petition is:

That defendant "negligently failed to exercise ordinary care to furnish the plaintiff with a reasonably safe place in which to work; negligently failed to protect and guard said hole in the floor where plaintiff was ordered to work and was working; and negligently caused and permitted said hole to be covered with a thin piece of tin; * * * and negligently ordered the plaintiff to work at or about said hole,

* * * when they knew, or by the exercise of ordinary care should reasonably have anticipated, that plaintiff would likely step upon said tin, * * * and would thereby be injured. That all of the facts, circumstances, and conditions and dangers aforesaid were known to the defendant and his foreman or vice principals, or by the exercise of ordinary care should have been known to them, in time so that by the exercise of ordinary care on their part the dangerous condition of and surrounding said hole could have been remedied and rectified before the time of plaintiff's injury, and plaintiff's said injury thereby have been avoided."

The second amended answer of defendant is a general denial, with pleas of contributory negligence and assumed risk, and further states that plaintiff's injuries, if any, were due to the act of a fellow servant. The reply was a general denial.

The cause was tried to a jury, resulting in a verdict for plaintiff in the sum of $10,000, for which judgment was accordingly entered, Motion for new trial, duly filed, was heard July 1, 1922, and on July 25th thereafter the court made an order requiring a remittitur of $5,000 from said judgment to be entered within ten days thereafter. On July 28th, plaintiff filed a motion to set aside the order of remittitur, and upon consideration of said motion the court entered an order extending the time for filing remittitur to September 29th. When that date arrived, the order previously entered was set aside, and in lieu thereof a remittitur of $3,000 was required by the court. Motion for new trial then was overruled and judgment entered for $7,000. Motion in arrest was overruled, and defendant appeals.

The first point urged upon our attention is that the demurrer offered by defendant should have been sustained, for the reason that there was a total failure of proof of negligence as alleged in the petition. It is argued that the specific negligence alleged was not the cause of plaintiff's injury, and that all the charges in the petition are general save one, viz., and that they negligently ordered and directed plaintiff to work in and about said hole," etc. It is true, as defendant urges, that where a petition contains charges of general and specific acts of negligence, recovery must be had, if at all, upon the specific acts charged. And it is equally true that where only specific acts of negligence are charged, recovery may be had upon any or all of said charges, if proved and properly submitted to the jury in instructions. Here the record shows the cause was tried and submitted upon three of the specific acts of negligence alleged, to wit: (1) Permitting the hole to be inadequately covered; (2) directing plaintiff to work at and about the hole with defendant's knowledge (actual or constructive) of its dangerous condition; and (3) failure to warn plaintiff of the existence of the hole and of the danger of stepping into it.

Applying the well-known rules in our consideration of the demurrer, we find there is substantial evidence of record that the hole was covered by a piece of tin barely adequate for the purpose; that this tin was placed over the hole, by order of a superior, by a workman engaged on the building who was not under plaintiff's foreman; and that the tin was a thin piece and not substantial. Prom this evidence the jury well might infer that defendant permitted the hole to be inadequately covered. The testimony further tends to show that the hole had been so covered on the morning of the day plaintiff was ordered by his foreman to work near said hole. This evidence was sufficient to support a finding that defendant's foreman should, have known the hole was so insecurely covered that plaintiff might step in it and be injured. It is not disputed that the foreman failed to warn plaintiff of the...