Johnson v. Ingram
| Decision Date | 31 January 1944 |
| Citation | 178 S.W.2d 821,238 Mo.App. 241 |
| Parties | James H. Johnson, Respondent, v. Henrietta A. Ingram, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court; Hon. Brown Harris, Judge.
Affirmed.
Walter A. Raymond for appellant.
(1) No actionable negligence was shown by the evidence in view of the fact plaintiff was engaged in making repairs to the basement for the very purpose of making safe a place which he considered to be unsafe and dangerous before. Stone v Mo. Pac. Ry. Co., 293 S.W. 367, 369; Pritchard v Thompson, 348 Mo. 832, 156 S.W.2d 652, 655; Henson v. Armour Packing Co., 113 Mo.App. 618, 88 S.W. 166 167; Miller v. Walsh, 129 S.W. 458, 459; Johnson v. Keen, 168 S.W.2d 952. (2) Plaintiff was guilty of contributory negligence as a matter of law barring his right of recovery. The demurrer to the evidence should have been sustained for this reason alone. Waldmann v. Skrainka Const. Co., 289 Mo. 622, 233 S.W. 242, 248; Shuck v. Security Realty Co., 201 S.W. 559; Senseney v. Landay Real Estate Co., 345 Mo. 128, 131 S.W.2d 595, 598, 599; Cash v. Sonken-Galamba Co., 322 Mo. 349, 17 S.W.2d 927, 931; Hammack v. Payne, 235 S.W. 467, 468; Murray v. Ralph D'Oench Co., 147 S.W.2d 623, 626.
Nelson E. Johnson and B. A. Mintonye for respondent.
(1) Plaintiff, at the time of his injury, was not engaged in making repairs to the place where he was injured nor were any repairs being made at that point. Therefore the exception to the duty of the master to furnish a reasonably safe place for the servant to work, is not applicable. 39 C.J., sec. 557, p. 440; Labatt on Master and Servant (2 Ed.), p. 2466, sec. 924; Jacobson v. Hobart Iron Co., 103 Minn. 319, 114 N.W. 951; Bone v. Fruin-Colnon Contracting Co. (Mo. App.), 191 S.W. 1062, 1064; Rowden v. Mining Co., 136 Mo.App. 376, 117 S.W. 695, 697, 698. (2) Plaintiff was not guilty of contributory negligence as a matter of law, barring his right of recovery. Fischer v. M.-K.Express Co. (Mo. App.), 158 S.W.2d 458, 461; Edmondson v. Statler Hotel Co., 306 Mo. 216, 267 S.W. 612, 615; Bell v. Terminal Ry. Ass'n, 322 Mo. 886, 18 S.W.2d 40, 42; Bliesner v. Distilling Co., 174 Mo.App. 139, 157 S.W. 980, 982; Eaton v. Wallace (Mo.), 287 S.W. 614, 616; Culver v. Minden Coal Co. (Mo. App.), 286 S.W. 745, 747; Clay v. Owen, 338 Mo. 106, 93 S.W.2d 914, 916; Nash v. St. Joseph Lead Co. (Mo. App.), 238 S.W. 584.
This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 873, and defendant has appealed.
The facts show that plaintiff, at the time he was injured, had been employed by defendant as janitor, for five years, at a thirty-six-apartment building owned by defendant in Kansas City; that the building was heated by means of steam, the furnace being located in the basement; that the furnace and boiler stood in a pit about eighteen inches below the level of the basement floor; that the furnace was fed coal by a mechanical stoker; that the stoker was located a few feet to the west of the furnace and set in a deeper pit than that in which the furnace was located. It was one of the duties of the plaintiff to fire this stoker and attend the furnace. Plaintiff coaled the stoker from a coal bin located in the northwest corner of the basement, a short distance from the stoker. Along the south wall of the basement there was a passageway about eight feet in width. Along the north edge of this passageway there was a row of brick pillars about two and one-half feet square and painted white. One of these pillars formed the north boundary of this passageway and was located directly south of the stoker. The pit, where the stoker was located, was surrounded by an inclining ramp on the south, west and north. The ramp led down to a brick wall around the stoker from which there was a perpendicular drop of several feet to the level on which the base of the stoker stood. The ramp was shaped like a horseshoe and the stoker stood at the east or open end of it. The ramp extended to the south edge of the pillar above mentioned and to within one foot of the west wall of the basement and to the north wall.
Plaintiff's evidence was that the ramp, on the south side of the stoker, sloped downward toward the stoker at an incline of what he thought to be forty-five degrees. In other words, in a horizontal distance of three and one-half or four feet north from the edge of this part of the ramp and toward the stoker there was a drop of about three feet. The surface of the ramp was made of smooth concrete and was slick. There was a perpendicular pit about three feet deep immediately surrounding the stoker. There was no steps down to the stoker or to the furnace and no railing along the edge of the incline or the ramp.
In feeding the stoker plaintiff was required to bring the coal from the bin on the west side of the basement down that part of the ramp in front of the stoker. In walking down the ramp plaintiff had fallen several times. He complained to defendant about its dangerous condition and two months before plaintiff was injured another man had fallen on the ramp on the south side. Plaintiff had reported this fact to defendant. Defendant assured plaintiff that these conditions would be remedied. Plaintiff testified that he relied upon her promise and continued his work.
Defendant employed plaintiff to reduce the grade of the ramp between the stoker and the coal bin on the west and agreed to pay him extra compensation for that work. He was instructed to do nothing with reference to the south side of the ramp which led from the passageway down to the stoker. He was to work only on the west side. Defendant was to have someone else put in a guardrail along the south side of the ramp. For three or four weeks before plaintiff was injured he had been putting cinders in the pit around the stoker for the purpose of filling it up. He had broken up some concrete and dug out some dirt in front of the furnace. Plaintiff had last worked on the west side of the ramp on the evening before the morning he was injured, the latter event occurring on the morning of November 2, 1941, about 11:00 a. m.
Plaintiff was in the basement standing about even with or a little to the west of the white brick pillar located directly south and opposite the stoker. He was facing east and talking to a friend, one Vann who was standing near the boiler of the furnace. There was a door at the west end of the passageway. While plaintiff was talking to Vann defendant's husband came in this door, which closed automatically behind him. Plaintiff turned and stepped west about two and one-half feet, facing north, for the purpose of pointing out to and showing defendant's husband how much concrete he lacked to complete the job. At that time plaintiff had filled in the space between the coal bin and the stoker to a height lacking one inch of the desired level. Plaintiff testified: He fell backward in a sitting position. He received injuries to his back and left hip. Plaintiff testified that defendant had instructed him not to turn on the lights that were present "because the light bills were too high;" that he could not see where he was stepping and that while there were some nearby windows, and the door to the west had a glass in it, all of the windows were boarded up but one and the light form this window was obstructed; that the door had a piece of sheet iron over the glass part.
Plaintiff had worked around the furnace and stoker for a period of five years. He testified that he had gone over the place where he fell "countless times" before.
Plaintiff's witness, an expert engineer and architect, testified that architects "tried not to get a ramp over ten degrees;" that "fifteen degrees, in my estimation, is a steep ramp;" that the maximum grade of a ramp which can be used with safety is not over fifteen per cent; that he had never seen a ramp with an incline of forty-five degrees for people to walk on; that a man of ordinary prudence would not try to use a forty-five degree incline "not in ordinary conditions; if an emergency, he would try to slide down it." Plaintiff testified that he was familiar with concrete work, knew what an angle of forty-five degrees was and his counsel prepared a wooden exhibit which he displayed before the jury to represent and illustrate a forty-five degree slope.
Defendant insists that her instruction in the nature of a demurrer to the evidence should have been given, because, at the time he fell, plaintiff was engaged in making an unsafe...
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