Johnson v. Boaz-Kiel Const. Co.

• Decision Date: 07 January 1930
• Docket Number: No. 20688.,20688.
• Citation: 22 S.W.2d 881
• Parties: JOHNSON v. BOAZ-KIEL CONST. CO.
• Court: Missouri Court of Appeals

22 S.W.2d 881

JOHNSON v. BOAZ-KIEL CONST. CO.

No. 20688.

St. Louis Court of Appeals. Missouri.

January 7, 1930.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Charlie Johnson against the Boaz-Kiel Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Wayne Ely, of St. Louis, for appellant.

Foristel, Mudd, Blair & Habenicht, of St. Louis, for respondent.

NIPPER, J.

This is an action to recover damages for personal injuries sustained by plaintiff while in the employ of defendant. At the time plaintiff sustained his injuries, which was April 29, 1926, the defendant was engaged in erecting an apartment building in the city of St. Louis. Plaintiff was working on the thirteenth floor, engaged in the laying of concrete on said floor. Plaintiff, together with four other men and the foreman, making six in all, was placing concrete over this thirteenth floor. There were certain places on the floor where the concrete was soft and soggy, due to the fact that the concrete was deeper at these particular points than at other places, and had not hardened to the extent that it would not yield when stepped upon. Over a portion of this floor beams were located which were filled with concrete to the level of the floor, and the surface of the floor where these beams were located was soft, due to the greater depth of the concrete at these points.

In the course of plaintiff's work he distributed this concrete as it came from a certain chute made of wood and metal; each section being about 16 feet long and weighing, according to the various estimates, from 300 to 600 pounds. When there was concrete in one of these sections and it became necessary to move it, from four to six men were usually used in moving a section. It frequently became necessary to move one section of the chute from one portion of the floor to another. At the time plaintiff was injured the foreman directed him and another employee to move one section of this chute and carry it to another part of the building. Plaintiff remonstrated with the foreman by telling him it was too much for two men to carry, but the foreman told him to go ahead, that they could move it. Whereupon the plaintiff and the other servant lifted up the chute and proceeded with it towards the place where it was to be located. In walking with the chute plaintiff had to walk backwards, and in doing so he had to pass over certain portions of the floor where these beams or the soft places in the concrete were located. It required an unusual and extraordinary effort on the part of the two men to carry this chute, for it was work that usually four or six men did. While plaintiff was aiding in carrying this chute and walking backwards, he stepped into one of these soft areas, and on account of the extreme weight of the chute his foot sank down and he was caused to fall and the chute fell upon him, injuring him. The nature, extent, and character of the injury he received will be referred to later. The foreman was present and overseeing the work at the time plaintiff received his injuries. Plaintiff said that he knew these places were in the floor, but that he had to walk backwards and was unable to see them on that account. The floor was smooth, and these beams were covered with concrete which was about 2 inches deep on the floor and about 18 or 20 inches deep on the beams. One of the men had to walk backwards and it fell to plaintiff's lot to do so.

The errors urged on appeal have reference to the giving and refusing of certain instructions in the case. Defendant offered no evidence and insists here that its instruction in the nature of a demurrer should have been given, first, because plaintiff assumed the risk, and, second, that he was guilty of contributory negligence as a matter of law. Under the Missouri rule a servant only assumes the risks that are incident to the employment. In this case it was a question of negligence and contributory negligence. Plaintiff cannot be convicted of contributory negligence as a matter of law, because he failed to observe this soft place in the concrete floor. He was walking backwards with an extremely heavy load under the orders and directions of his foreman, and even though he knew that there were such soft places in the floor of the building, the order of the foreman, after plaintiff had protested, was equivalent to assurance to the employee that such foreman's orders could be observed with reasonable safety. Struckel v. Engine Co. (Mo. App.) 300 S. W. 993. The danger was not so obvious as to convict plaintiff of contributory negligence as a matter of law.

The insistence is further made that the plaintiff in this case overexerted himself and that in such case the master is not responsible. We think the facts of this case do not bring it within the class of cases with respect to overexertion. This is a case where liability exists, if at all, due to the failure of the master to furnish and provide sufficient help, and this failure on the part of the master in the instant case, if plaintiff's testimony be true, resulted in his injury.

It is also urged that there was error in the giving of instruction No. 1, on behalf of plaintiff, because of the fact that such instruction failed to...