Gwinn v. McComas Hydro Power Co.

• Decision Date: 21 May 1917
• Docket Number: No. 11935.,11935.
• Citation: 195 S.W. 504
• Parties: GWINN v. McCOMAS HYDRO POWER CO.
• Court: Missouri Court of Appeals

195 S.W. 504

GWINN v. McCOMAS HYDRO POWER CO.

No. 11935.

Kansas City Court of Appeals. Missouri.

May 21, 1917.

Appeal from Circuit Court, Platte County; A. D. Burnes, Judge.

"Not to be officially published."

Action by O. P. Gwinn against the McComas Hydro Power Company. Judgment for plaintiff, and defendant appeals. Reversed.

James H. Hull, of Platte City, and Martin E. Lawson, of Liberty, for appellant. Guy B. Park, of Platte City, and Francis M. Wilson, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff was engaged at labor for defendant, and received personal injury for which he brought this action. He recovered judgment in the circuit court. Defendant grounds its appeal on the claim that no case was made for the jury, and that its demurrer to the evidence should have been sustained.

It appears from the evidence in plaintiff's behalf that defendant was engaged in building a bridge across a stream in Platte county and was using in its construction large quantities of crushed rock and cement. The rock was crushed "to about size of a quail's egg and down to dust particles." It was in a large pile from thirty to forty feet long and perhaps twenty feet wide, and was from eight to nine feet high. Plaintiff and three other men were engaged with shovels and wheelbarrows in wheeling the rock to the "mixer," where it was mixed with sand and cement preparatory for use. There had been wet weather and cold weather, so that a frozen crust from six to eight inches thick had formed at the top of the pile. As the men would shovel into their wheelbarrows, the sloping rock would "slide down like in a pile of corn," though some of it was frozen together "in pieces as large as a man's fist." Plaintiff himself testified that he never noticed any pieces sliding down that were "bigger than your fist" until the piece came against him and broke his leg. That piece he said was two and a half or three feet square, six or eight inches thick, and he stated would weigh 200 or 300 pounds. At the moment he was hurt he was scraping refuse dirt and grit off of the plank used as a runway for the wheelbarrows, and his side was to the pile, so that he did not observe the solidified piece sliding down until it struck his leg.

Defendant had put plaintiff at this particular work on the day before, and he stated that his experience in wheeling grit (crushed rock) from a pile to the mixer was confined to that day and the next morning until about 10 o'clock, when he received his injury. He stated that while he was working the next morning the rock slid down about the same slope as it did the day before. When asked about what he observed while he was shoveling into the wheelbarrow he stated: "I looked up several times when the rock would be rolling down. It's natural for a fellow to notice up." But he stated that he did not look to see if there was a frozen crust. At the time he was hurt they had gotten "to where the pile was as deep as anywhere. It was anywhere from eight to nine feet deep."

Plaintiff's brother was introduced as a witness for him, and he stated he worked with plaintiff for about two hours that morning; that the rain and snow and freezing and thawing had formed a crust on top of the pile from four to six inches thick, and they used a hammer to break up the crust; he had noticed the crust while he was at work with plaintiff; and that "we had been using the shovels knocking the frozen grit off as it would slide from under it. We had been punching that frozen crust off."

Another of plaintiff's witnesses stated he had seen all four of the men punching at the top of the bank with their shovels; while others called by him had noticed the frozen crust sticking over, but that "it was not projecting out very far." He was asked whether it was as much as a foot, and answered: "I couldn't say. We was shoveling, and the rock would roll down."

There was further testimony from persons of experience that they had generally covered the rock so as to prevent it getting wet and freezing on top; that this was done partly for safety and partly so that it could readily go into the "mixer."

It is apparent that this work in which plaintiff was engaged was about as simple in performance as could well be suggested. It was as simple as the most ordinary farm-work and as little likely to hurt a person of the...