Hester v. Jacob Dold Packing Company

• Decision Date: 03 March 1902
• Parties: DANIEL HESTER, Respondent, v. JACOB DOLD PACKING COMPANY, Appellant
• Court: Kansas Court of Appeals

75 S.W. 695

95 Mo.App. 16

DANIEL HESTER, Respondent, v. JACOB DOLD PACKING COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

March 3, 1902

Rehearing Denied 95 Mo.App. 16 at 26.

Appeal from Jackson Circuit Court.--Hon. E. P. Gates, Judge.

Judgment affirmed.

Lathrop Morrow, Fox & Moore for appellant.

(1) Under the testimony of the plaintiff himself, the court should have directed a verdict for the defendant. Nolan v. Shickle, 69 Mo. 336; Bohn v. Railroad, 106 Mo. 429; Shea v. Railroad, 76 Mo.App. 29; Fugler v. Bothe, 117 Mo. 475; Thomas v. Railroad, 109 Mo. 187; Berning v. Medart, 56 Mo.App. 443; Aldridge v. Furnace, 78 Mo. 559; Watson v. Coal Co., 52 Mo.App. 367; Junior v. Power Co., 127 Mo. 79; Steinhauser v. Spraul, 127 Mo. 541; Marshall v. Hay & Press Co., 69 Mo. App, 256; Holloran v. Iron Foundry Co., 133 Mo. 470; Jackson v. Railroad, 104 Mo. 448; McCarty v Rood Hotel Co., 144 Mo. 397; Hulett v. Railroad, 67 Mo. 239. (2) The court erred in refusing to give instruction number 3, requested by defendant. Fugler v. Bothe, 117 Mo. 475; Nolan v. Shickle, 69 Mo. 336; Bohn v. Railroad, 106 Mo. 429; Shea v. Railroad, 76 Mo.App. 29; Junior v. Power Co., 127 Mo. 79; Railroad v. Love, 10 Ind. 554; Showalter v. Fairbanks, 60 N.W. 257; Epperson v. Postal Co., 50 S.W. 806. (3) The court erred in refusing instructions numbers 6 and 7, requested by the defendant. Moore v. Railroad, 146 Mo. 572; Hurst v. Railroad, 63 S.W. 695; Hulett v. Railroad, 67 Mo. 239. (4) The court erred in giving instruction numbered 2, at the request of plaintiff. Lynch v. Railroad, 112 Mo. 420; Brannock v. Elmore, 114 Mo. 55; Wolf v. Ins. Co., 86 Mo.App. 580; Thompson v. Irwin, 76 Mo.App. 418. (5) The court erred in permitting witness Roberts to state that the condition of the scaffolding boards would have been disclosed by a careful examination. Gatridge v. Railroad, 94 Mo. 468; Hoffman v. Railroad, 51 Mo.App. 273; Madden v. Railroad, 50 Mo.App. 666; Gavisk v. Railroad, 49 Mo. 274.

Hollis & Fidler for respondent.

(1) The testimony of the plaintiff is in effect the same as on the former appeal, and the court should be guided by its former opinion, which is the law of this case. (2) There was no evidence to support defendant's refused instruction number 3. All the testimony was that plaintiff knew nothing about and did not examine the board by which he claims he was injured. The plaintiff's testimony showed he knew nothing about it and the defendant offered no testimony on the subject. (3) Defendant's refused instructions 6 and 7 were manifestly not the law and were properly refused. All the testimony is that the plaintiff thought he was perfectly safe in walking on the plank. The plaintiff was not bound to walk the ties when the road was planked. The plank road was an invitation to use it. Lynch v. Railroad, 112 Mo. 420. (4) The question asked witness Roberts, and the answer thereto when fully stated, are perfectly proper. Hoffman v. Railroad, 51 Mo.App. 273; Madden v. Railroad, 50 Mo.App. 666; Gutridge v. Railroad, 94 Mo. 468; Gavisk v. Railroad, 49 Mo. 274.

OPINION

BROADDUS, J.

This case was in this court once before on appeal, and will be found reported in 84 Mo.App. 451.

The plaintiff is a carpenter, and the defendant corporation is engaged in the business of killing and packing meats in Jackson county, this State. On about the third day of July, 1898, the defendant was engaged in erecting an ice plant on its premises, and that while so engaged it became necessary to have scaffolding for the use of plaintiff and other workmen who were the employees of defendant in constructing said plant. This ice plant under construction consisted of two tanks, each about thirty-five feet wide, by seventy feet long and four feet deep. "The framework (called lattice-work by witnesses) was being put on one of these tanks, and not being strong enough to support the weight of a man, planks were laid across for the use of the workmen in getting about. The boards (of the scaffolding) were supported at about every fifteen or twenty inches. Plaintiff was walking on one of these boards, in going after one of his tools, when it broke, letting his leg into the tank, injuring it. There was evidence tending to show that all the lumber furnished by the defendant was new, good and sufficient for the purpose intended. There was also evidence to show that the plank which broke with plaintiff was painted and had nail holes in it, indicating that it had been used before.

Much of this statement is taken from the opinion of Judge ELLISON in the case as reported. The case was reversed for error of the trial court in giving a certain instruction for the plaintiff, and remanded for a new trial. The plaintiff's instructions, herein, seem to have been framed so as to comply with the opinion of the court rendered as aforesaid, therefore, the plaintiff contends that the case is res adjudicata and should be affirmed. On the contrary, the defendant contends that under the evidence the status of the case has materially changed, and that it should be reversed, because the instructions do not meet the issue under the changed conditions, and because the court committed error in refusing to give to the jury certain instructions asked by the defendant.

The defendant's claim is, that on the second trial the plaintiff's own testimony showed that he knew of the defects of the board that broke under him and caused his injury, as well as it was possible for the defendant's foreman in charge to know. As the first bill of exceptions containing his evidence is not before us, we do not know what his evidence in detail was. But judging from a statement in the opinion referred to, that the "plaintiff testified that he did not notice the defects," we will presume that such was the purport of his testimony. It is therefore to be ascertained from an examination of the record before us, whether, at the time of the injury, the plaintiff was aware of the defects of said board, or that he possessed as much knowledge in that respect as it was possible for defendant's foreman to have. We will give some of his testimony in answer to questions propounded to him.

"Q. Now you say you have been a carpenter for some thirty years? A. Yes, sir. Q. Have you ever helped to build houses? A. Yes, sir, lots of them. Q. In the course of building houses, Mr. Hester, did you ever see any scaffolding? A. Yes, sir, lots of them. Q. So, as a matter of fact, you have been working around and on scaffolding for some thirty years? A. Yes, sir. Q. You have put up scaffolding yourself have you? A. Yes, sir. Q. Hundreds and perhaps thousands of times? A. I expect a hundred times. I have built lots of scaffolding in my life. Q. So that you know as much about the strength of boards and scaffolding as any man could of your thirty years' experience? A. Well, I think I know when a board will hold a man up. Q. And you see whether it is a new board or an old board? A. Yes, sir; I never use old boards in scaffolding. Q. Take a case of scaffolding built by somebody else, where you have to go, you always examine them? A. Most assuredly, anybody would. [After stating that his weight was about 230 pounds, the following questions were put to him]: Q. And so before you trust your weight upon a scaffolding it has been your practice for years and years to examine to see if it will hold you up? A. Yes, where a scaffold is built. Q. As a matter of fact, do you know of anybody that has more experience and more likely to know about the strength of boards than you have? A. No, I don't know that I do. Q. And that is the result of your thirty years' experience? A. Yes, sir. Q. And these boards you say that you had to walk on there were not only old boards, but they were painted boards? A. Yes, sir. Q. And had nail holes in them? A. Yes, sir; had been nailed up on a building somewhere, I couldn't say where. Q. So of course you noticed that when you first went to work, did you not, when you first had gone to use them? A. Well, yes. Q. Anybody who walked on them as you did, couldn't help but notice that they were old boards and that they were painted and had these nail holes in them? A. Yes. Q. But if these boards had been weakened, why, you knew from your thirty years' experience what the danger would be in walking over them didn't you? A. Well, yes. Q. And from your experience you knew that as well as any one else, didn't you? A. Well, yes, as I said before, I think I know when a scaffold is safe. Q. Now when was it you made the first inspection, when you first went to work? A. Why, when the boards was put in. Q. And just from force of habit, as an old carpenter, when you were called on to work on this work, why, you would examine them and inspect them as you had occasion to use them? A. Why, most assuredly. Q. And based your judgment on that, as to whether they were sound and sufficient to hold your weight? A. Yes."

This evidence, in short, is that he was a carpenter of thirty years' experience, and skilled in his craft; that his experience in building scaffolding was great, and his knowledge as to their stability and safety equal to that of any one; that he never went upon one without inspecting it in order to ascertain its safety; that he knew the material of which the one in question was constructed inspected it before he got on it, and inspected the boards from time to time as he used them. With all this knowledge he testified that he did not know that scaffolding was unsafe. It is shown by the evidence of J. W. Roberts, that the plank that broke under the weight of plaintiff was unsound; that it was a rotten board, and painted on one side. He says that he noticed the character of the boards at the beginning, when the scaffold was started, and...