Kellogg v. H.D. Lee Mercantile Co.

• Decision Date: 16 February 1942
• Parties: AUGUSTUS R. KELLOGG, RESPONDENT, v. H. D. LEE MERCANTILE COMPANY, A CORPORATION, APPELLANT
• Court: Kansas Court of Appeals

160 S.W.2d 838

236 Mo.App. 699

AUGUSTUS R. KELLOGG, RESPONDENT, v. H. D. LEE MERCANTILE COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

February 16, 1942

Appeal from Circuit Court of Jackson County.--Hon. Thomas J Seehorn, Judge.

AFFIRMED.

Judgment affirmed.

Cowgill & Popham and Sam Mandell for appellant.

Marcy K. Brown, Jr. for respondent.

(1) Defendant was negligent, and plaintiff was not guilty of contributory negligence as a matter of law. All inferences from the evidence must favor plaintiff, unfavorable inferences rejected and unless all reasonable persons would conclude plaintiff negligent, he cannot be held guilty under a demurrer to the evidence. Moone v. Kroger Grocery & Baking Co., 148 S.W.2d 628, 630; Gentili v Dimaria, 89 S.W.2d 93, 95; Brouk v. Wood Heel Co., 145 S.W.2d 478. There is no evidence to show contributory negligence, on the contrary the evidence shows plaintiff used due care. Gentili v. Dimaria, 89 S.W.2d 93, 95; Winters v. Hassenbusch, 89 S.W.2d 546, 550; McFarland v. Sears, Roebuck & Co., 91 S.W.2d 615, 621; Hubenschmidt v. S. S. Kresge Co., 115 S.W.2d 211, 214; Geninazza v. R. U. Leonori Auction & Storage Co., 252 S.W. 417, 419; Howard v. S. C Sacks, Inc., 76 S.W.2d 460, 465; Evans v. Sears Roebuck & Co., 104 S.W.2d 1035, 1039(6-7). Admissions on cross-examination do not show contributory negligence unless the facts themselves show it. Struckel v. Engineering Co., 300 S.W. 993, 995; Crowell v. St. Louis Screw Co., 293 S.W. 521. (2) Doctrine of incurred risk can have no possible application to this case.

OPINION

CAVE, J.

This is a suit for personal injuries. For convenience, we will refer to the parties as plaintiff and defendant. The plaintiff first joined as defendants H. D. Lee Mercantile Company, a corporation, and trustees of the Chicago, Milwaukee, St. Paul & Pacific Railroad Company, but later dismissed as to the defendant railroad company, and the cause was tried against the Lee Mercantile Company alone, resulting in a verdict for the plaintiff in the sum of $ 2000. Appeal was perfected to this court in due course. The defendant did not introduce any evidence and is urging but one point on the appeal, viz., that the court erred in refusing to sustain its demurrer to the evidence, because plaintiff's evidence showed, as a matter of law, (a) that the defendant was not guilty of negligence; (b) that plaintiff was guilty of contributory negligence; (c) that plaintiff voluntarily incurred the risks incident to his work.

This will necessitate a detailed statement of the evidence. Plaintiff was employed by the railroad company as a yard conductor or switching foreman and, as such, was in charge of the crew engaged in the switching operation hereinafter mentioned. Defendant owned and operated a warehouse, located on the south side of Twenty-First at Wyandotte Street in Kansas City. At the southeast corner of this building two sets of railroad tracks run into the building from the south with a concrete dock about four feet high, located between the two sets of tracks and is used for loading and unloading defendant's merchandise. The east railroad track has not been used for a number of years. The west track is the one used for cars and is the one involved in this accident. It is long enough inside of the building to accommodate three ordinary railroad cars. On the concrete dock are ten concrete pillars used to support the building; these pillars are approximately sixteen feet apart and set back about sixteen inches from the west edge of the dock. The loading dock belonged to the defendant. The ceiling above the dock was fourteen and one-half feet high and there were five or six electric lights in the ceiling just east of the pillars. In placing the cars for unloading merchandise onto the dock the plaintiff, as such foreman, would have the cars backed into the building on the west track, which would make the cars traveling north. It was plaintiff's custom to ride on the top of the car first entering the building and at the northeast corner thereof in order to signal the engineer where to stop that car so that its doors could be opened without interference by any of the concrete pillars. When the first car was placed the plaintiff would descend onto the dock and walk along the west edge of the dock to uncouple that car and then move the next one in place, and when that car had been properly located, would move along the dock to uncouple the other cars. He had been doing this work in this building almost every day, except Sunday, for almost twenty years. The top of the dock was approximately level with the floor of the freight car, and there was sixteen inches between the side of the car and the side of the dock. Plaintiff testified that it was his custom to walk along the top of the dock to uncouple the cars because the space between the dock and the cars was so narrow that he could not comfortably move along there without danger of tearing his clothing or being injured, and only got down on the ground between the dock and the car in an emergency.

It was the custom of defendant's employees to unload the cars and place the merchandise, which was in pasteboard cartons, on the dock and between the pillars. Sometimes the merchandise, so placed, was two feet high and at other times it would be five or six feet high and usually took up practically all of the space between the pillars so that a person could not walk along the dock to the east or behind the pillars and then enter at the proper place to uncouple the cars. During the twenty years plaintiff had been performing his duties at this plant, defendant's employees had frequently placed the merchandise outside of the line of the pillars and nearer the edge of the dock, and that when the merchandise was from four to six feet high it would obstruct the direct light from the electric lights and cast a shadow along the edge of the dock where it was plaintiff's custom to walk; that he knew this and he had frequently complained to defendant's employees of such practice; that when he would complain such conditions would be improved for a few days but soon the merchandise would again be placed near the edge of the dock and at such a height that it would cast a shadow along the space where he walked.

The plaintiff also testified that on the day of the accident he rode into defendant's building on the lead car, as was his custom, and that he was looking to the north to see that the car did not strike a bumping post near the north wall; that he paid no particular attention to the loading dock as the cars entered, but did notice some merchandise on the dock; that when the first car was placed he came down from the top of the car onto the dock with the intention of going forward to uncouple that car; that the length of the car was approximately forty-two feet.

Concerning what occurred at the time of the accident, we now quote plaintiff's own testimony; on direct-examination he testified:

"Q. You had a distance of forty feet to walk on the edge of the dock in order to get down to make your uncoupling? A. Yes sir.

"Q. As you went down there did you notice anything about the merchandise that was piled up there? A. When I got down I noticed there had been merchandise piled along in between the pillars of the building and they piled it outside of the line of pillars.

"Q. Where was this? A. The middle of the car.

"Q. Was it different than it was the day before? A. Yes, sir.

"Q. Was the merchandise higher? A. Yes, sir.

"Q. How much higher? A. The merchandise was piled five or six feet high and--

"Q. (Interrupting) At that point haw far outside of the line of the pillars was it? A. That only left about eight or ten inches to the edge of the dock.

"Q. You had at that point, when you first encountered it, about eight or ten inches between the edge of the dock and the merchandise? A. About eight or ten inches between the edge of the dock and the merchandise.

"Q. It was piled out beyond the pillars? A. Yes, sir.

"Q. When you encountered that situation what did you do? A. Well, I put my hand up along the side of the car to brace myself to get along.

"Q. Did you observe where you were going? A. I did.

"Q. Did you observe carefully the steps you took? A. I couldn't with the lights that was provided.

"Q. What was the condition as to the light? A. The light was all in darkness midways from the shadows of the merchandise being so high.

"Q. Was there any other way for you to get down to that car to uncouple it? A. No, sir.

"Q. Is that the usual and customary way you always did it? A. Yes, sir.

"Q. Is that the way that the H. D. Lee Company and the warehouse foreman knew you worked? A. Yes, sir.

"Q. Had he seen you do that many times? A. Yes, sir.

"Q. Did you ever get down on the track level and walk along there to make your uncoupling? A. Not unless I had something very special because I wasn't tearing my clothes off trying to get through there.

"Q. That was the usual and customary way of walking along the edge of the dock? A. Yes, sir.

"Q. You say you held your arm up the side of the car? A. Yes, sir.

"Q. And walked forward with the merchandise on the lefthand side? A. Yes, sir.

"Q. And you say at that point it was about eight to ten inches to the edge of the dock? A. Yes, sir.

"Q. Did the lights illuminate the edge of the dock? A. No, sir.

"Q. You were going into a place a little dark and a little cramped? A. Yes, sir.

"Q. And will you tell the jury how you went about that? A. I went very slow, bracing myself so as to keep from falling.

"Q. And did you look where you were going? A. I looked the best I could.

"Q. Did you feel your steps along? A. I did.

"Q. All right, tell the jury how fast you...