Hill v. Wainwright Industries, Inc., 35856

• Decision Date: 18 March 1975
• Docket Number: No. 35856,35856
• Parties: Epps HILL, Jr., Plaintiff-Appellant, v. WAINWRIGHT INDUSTRIES, INC., Defendant-Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 131

522 S.W.2d 131

Epps HILL, Jr., Plaintiff-Appellant, v. WAINWRIGHT INDUSTRIES, INC., Defendant-Respondent.

No. 35856.

Missouri Court of Appeals, St. Louis District, Division One.

March 18, 1975.

Motion for Rehearing or Transfer to Court En Banc or

Transfer Denied April 14,

1975.

Joseph Langworthy, Pacific, for plaintiff-appellant.

Roberts, Heneghan & Coffelt, Inc., James J. Virtel, St. Louis, for defendant-respondent.

WEIER, Presiding Judge.

Following an award denying workmen's compensation in part for the reason that claimant's condition was not causally related to an accident or occupational disease, plaintiff filed suit for damages allegedly caused by the failure of his employer to furnish him with safe and sufficient tools and with a safe place to work. At the close of plaintiff's case the court sustained a motion for directed verdict. From this judgment plaintiff appeals. We affirm.

We review the essential facts. Plaintiff, 36 years of age at the time of trial, had been employed by defendant Wainwright Industries, Inc. for eighteen years and normally worked as maintenance mechanic. In May of 1966 he was requested by Mr. Nelson Wainwright, President of defendant company, to construct two wooden die racks. Each rack consisted of four shelves, two feet wide by sixteen feet long, supported by vertical frames, four feet high and two feet deep. They were constructed by cutting two-by-four uprights to the proper length, laying them our on a concrete floor, and nailing on one-by-four inch cross members. After sufficient frames were made, they were set in a vertical position and two one-by-twelve inch boards, sixteen feet long, were then laid horizontally on the various cross members to form a shelf. After four shelves were positioned, a back of two four-by-eight foot pieces of plywood was attached and the entire rack then painted. The construction of two of these racks took place over a period of ten days. They were constructed in an empty tool room twenty-four feet by twenty-four feet, where they were to be placed. The tool room had a smooth concrete floor. To construct these racks, plaintiff was given a hand saw, a hammer, a square, and a rule, and he also borrowed a table saw from his foreman, Mr. Seaman. Wainwright had prepared a simple working sketch to indicate how he wanted the tool racks prepared. Plaintiff had one assistant working with him on the racks. No one told him specifically how to do the work.

In going about the construction of the two racks, plaintiff stated that he had to crawl about upon the concrete floor with his knees and frequently used his knees to press the boards down to get them in place in order to nail them in their proper positions. He said that he began to notice pain in his knees and legs on the first day that he worked on the project. His left knee then began to swell. He showed this to his foreman who didn't have anything to say. Mr. Wainwright came by on a daily basis, but plaintiff did not complain to him of any trouble with his knees or legs.

Following the medical testimony indicating the causal connection between the use of plaintiff's knees and subsequent operations and medical care, the trial court sustained defendant's motion for directed verdice on three grounds: (1) plaintiff had not by substantial evidence of probative value proved actionable negligence against the defendant; (2) the evidence did not...