Hutson v. Missouri Stair Co.

• Decision Date: 07 June 1927
• Docket Number: No. 19820.,19820.
• Citation: 296 S.W. 216
• Parties: HUTSON v. MISSOURI STAIR CO.
• Court: Missouri Court of Appeals

296 S.W. 216

HUTSON v. MISSOURI STAIR CO.

No. 19820.

St. Louis Court of Appeals. Missouri.

June 7, 1927.

Appeal from 1St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Charles Hutson against the Missouri Stair Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Anderson, Gilbert & Wolfort, of St. Louis, and Merritt U. Hayden, of Detroit, Mich., for appellant.

Hensley, Allen & Marsalek and Hay & Flanagan, all of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff on December 29, 1924, while in the employ of defendant. The verdict of the jury was in favor of plaintiff in the sum of $8,000. A remittitur of 8590 was entered, and judgment thereafter rendered against defendant for 87,500, from which, after an unavailing motion for a new trial, it has duly perfected this appeal.

The negligence pleaded and relied upon was the act of defendant in ordering and directing plaintiff to go upon a pile of lumber and the lumber therein contained and pass lumber down therefrom to the ground beneath, when the defendant knew, or by the exercise of ordinary care could have known, that, because of the icy, slick, slippery, and dangerous condition of the lumber pile and the lumber therein contained, it was dangerous and hazardous for plaintiff to go thereupon and undertake to perform the duties required of him.

The answer of defendant was a general denial.

The evidence, so far as it is material to the issues involved in this appeal, disclosed that plaintiff had been in the employ of defendant for slightly less than two months when he received the injuries on account of which this action for damages was brought. Defendant's business was that of making stair steps, and, in connection with its factory, it maintained a yard in which a number of piles of lumber were standing.

For 12 days prior to December 29th there had been considerable rainfall, together with sleet and snow, resulting in the formation of ice. While the amount of ice that had formed was not unusual for the time of the year, the length of time that it had remained on trees and wires was quite unusual and probably unprecedented. Throughout this entire period of time the temperature had been very low, usually below freezing, the reading on December 29th ranging from 30 degrees to 5 degrees above zero; and during the rainfall the wind had ranged in all directions around the compass, from south to north.

On the day in question, plaintiff was ordered by defendant's superintendent to go out into the yard and assist the yard foreman in bringing in some lumber. In order to get the lumber off of the pile upon which it had been stacked, the foreman ordered plaintiff to climb upon the pile, which was 18 to 20 feet long, north and south, and 4 feet wide, east and west. The planks comprising this pile were of different lengths and widths and had been placed in position about 1½ inches apart. The successive layers of planks were held apart by strips 1 inch in thickness and 2 inches in width. The pile itself, according to plaintiff's statement, was about 12 feet in height (though there was evidence that it was even higher), and sloped from the south to the north so that the north end was from 6 inches to 1 foot lower than the south end. The pile had been erected in such position that it was possible for rain and sleet to have been blown against and into it, either on the north, east, or south side. After the pile had been completed, planks had been placed across the top for a covering.

When plaintiff first got upon the pile, he observed that it was covered with 1 or 2 inches of ice, sleet, and snow. The foreman stood upon the ground by the south side of the pile, and plaintiff, after removing the cover, began to slide the planks down to him, one at a time, after which they were loaded on a truck. Plaintiff had taken off some 20 or 30 planks, and had lowered the pile about 1 foot, when the casualty occurred. As he was walking back in the middle of the pile towards the north side thereof, his feet slipped in the ice and snow, causing him to fall from the pile to the ground below and to be severely injured. Counsel for defendant strenuously attempted to bring out, on cross-examination, that such ice and snow had come solely from the boards that had already been removed, but plaintiff, while admitting that, in compliance with a direction from his foreman, he had turned each board over before sliding it down to the ground, was nevertheless emphatic that part of the ice upon the planks in the lower layers was solid and had formed on the planks upon which he was walking when he slipped and fell. He testified, further, that the rain had dripped down into the pile through the spaces left between the planks and had frozen, and that almost every plank he had removed had been frozen over with ice.

An hour or so after plaintiff had been injured, another employee of defendant had occasion to Inspect the pile a lumber from which plaintiff had fallen, and found that the planks still contained solid ice, especially on the north side, and that streaks of ice extended all the way across the pile, particularly along the edges of the boards.

Defendant stood upon its requested peremptory instruction in the nature of a demurrer to plaintiff's evidence, and now assigns the court's refusal thereof as error. It argues that actionable negligence on the part of defendant was not shown from the mere fact that ice and snow had accumulated on the top of the lumber pile, since such condition was general at the time throughout the entire city; that there was no proof of any general custom among owners or operators of lumber yards in the city of St. Louis to conduct their work in any different manner than that adopted by defendant; that plaintiff was subjected to no greater hazard by reason of the order given him to go upon the lumber pile than he would have faced had he been required merely to work out in the yard; that by reason of the work performed by plaintiff there was a change in the condition of the pile between the time he was ordered to work thereon and the time of the accident; and, finally, that there was no causal connection shown between the alleged negligent order and plaintiff's injury.

It is apparent that many of the contentions advanced by learned counsel for defendant are far-fetched and have been made in disregard of material portions of the evidence in the case. For instance, practically...