Hicks v. Hammond Packing Company

• Decision Date: 23 November 1914
• Citation: 171 S.W. 937,184 Mo.App. 672
• Parties: WILLIAM HENRY HICKS, Respondent, v. HAMMOND PACKING COMPANY, Appellant
• Court: Kansas Court of Appeals

171 S.W. 937

184 Mo.App. 672

WILLIAM HENRY HICKS, Respondent, v. HAMMOND PACKING COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

November 23, 1914

Appeal from Buchanan Circuit Court.--Hon. Chas. H. Mayer, Judge.

Judgment affirmed.

Samuel I. Motter and O. E. Shultz for appellant.

(1) There was a failure of proof as to defendant's knowledge of the broken step for the reason that plaintiff's own statement shows that the step was not broken for a sufficient time for defendant to have discovered and repaired the same. He is bound by his own statements. Holmes v Leadbetter, 95 Mo.App. 425; Feary v. Metropolitan Street Railway Co., 162 Mo. 105; Campbell v Stanberry, 105 Mo.App. 66; Shea v. Seelig, 89 Mo.App. 146; Erwin v. Railroad, 94 Mo.App. 297; Cogan v. Railroad, 101 Mo.App. 188-189; Shanahan v. St. Louis Transit Co., 109 Mo.App. 233. (2) The court committed error in permitting plaintiff to prove that he had incurred medical expense, when the petition alleged that it had been paid. Muth Executor v. Railroad, 87 Mo.App 422; Stanley v. Railroad, 112 Mo.App. 601; Nelson v. Metropolitan Street Ry. Co., 113 Mo.App. 659.

Mytton & Parkinson for respondent.

OPINION

JOHNSON, J.

--While employed as a carpenter in the meat packing establishment of defendant in St. Joseph plaintiff sustained personal injuries which he alleges were caused by negligence of defendant. The answer is a general denial and a plea of contributory negligence. A trial in the circuit court resulted in a verdict and judgment for plaintiff in the sum of $ 1375. Defendant appealed.

The injury occurred April 20, 1913, on a stairway connecting the fifth and sixth floors of one of the buildings. Plaintiff and a fellow workman had used the stairway that morning in going to the sixth floor where they had some work to do and were returning down the stairs, the steps of which were made of planks, when a defect in one of the steps caused plaintiff to lose his footing and to sit down so violently on the broken step that he injured the sciatic nerve in his left hip. The fact is not disputed that the tread plank of the step was in a defective condition at the time of the alleged injury and that plaintiff, who followed his companion in descending the stairs, slipped on account of the defect which consisted of a longitudinal split along the middle of the plank and a transverse break across the center of the forward half which made that part of the tread insecure. In their argument on the demurrer to the evidence, which they urge should have been given, counsel for defendant insist that the evidence of plaintiff, as well as that of defendant, shows that the defect in the step was caused that morning after plaintiff had ascended to the sixth floor, and was the result of the accidental dropping of a heavy pipe which was being carried up or down the stairs. Such is the substance of the testimony of defendant's witnesses and it is contended that plaintiff's own testimony conclusively shows that the defect was not in existence when he went to work that morning.

The fact is important in its bearing on the issue of whether or not defendant, as master, exercised reasonable care to provide its servant a reasonably safe place in which to work and the court properly instructed the jury to find for defendant if "the defective condition complained of did not exist prior to the day plaintiff was injured." This was an application of the rule that a master is entitled to a reasonable time and opportunity to discover and repair a defect in the place of work which arises during the progress of the work and an expression of the conclusion as one of law that the brief period which elapsed between the ascent and descent of the stairway by plaintiff on that day would not permit constructive notice of a defect created during that period. Consequently in finding for plaintiff the jury, thus instructed, must have believed from the evidence that the defect had been in existence before that day and that in the exercise of reasonable care defendant should have discovered and repaired it. A careful examination of all the evidence has led us...