Kobusch v. Ruberoid Co.

• Decision Date: 30 April 1946
• Docket Number: 39609
• Citation: 194 S.W.2d 911,355 Mo. 48
• Parties: Berniece Amelia Kobusch, Appellant, v. The Ruberoid Company, a New Jersey Corporation, and James Reid
• Court: Missouri Supreme Court

194 S.W.2d 911

355 Mo. 48

Berniece Amelia Kobusch, Appellant, v. The Ruberoid Company, a New Jersey Corporation, and James Reid

No. 39609

Supreme Court of Missouri

April 30, 1946

Rehearing Denied June 10, 1946.

Appeal from Circuit Court of City of St. Louis; Hon. James F Nangle, Judge.

Affirmed.

Wm R. Schneider and Walther, Hecker & Walther for appellant.

(1) The court erred in directing a verdict for defendants for the reason that there was sufficient evidence to submit the case to the jury on the ground that defendants were negligent in failing to give decedent any warning of the approach of the crane. Hudgens v. St. Louis & S.F.R. Co., 139 Mo.App. 44, 119 S.W. 522; Hutchinson v. Safety Gate Co., 247 Mo. 71, 152 S.W. 52; McMenamy v. Scullin-Gallagher Iron & Steel Co., 144 Mo.App. 707, 130 S.W. 357, 172 Mo.App. 678, 155 S.W. 1116; Smale v. Wrought Washer Mfg. Co., 160 Wis. 331; Edsberg v. Baldwin Locomotive Works, 240 Pa. St. 614. (2) The court erred in directing a verdict for defendant Ruberoid Company for the reason that there was sufficient evidence to submit the case to the jury on the ground that defendant Ruberoid Company was negligent in maintaining a stationary ladder in such position as to endanger the life and limb of persons required to use it. Jewell v. Sturges, 245 Mo. 720, 151 S.W. 966; Cummings v. Union Quarry & Const. Co., 231 Mo.App. 1224, 87 S.W.2d 1039; Roddy v. Mo. Pac. Ry. Co., 104 Mo. 234, 15 S.W. 1112. (3) The court erred in directing a verdict for defendants for the reason that there was sufficient evidence to submit the case to the jury on the humanitarian doctrine. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Crews v. Kansas City Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54; Berryman v. People's Motorbus Co., 228 Mo.App. 1032, 54 S.W.2d 747; Schmitt v. American Press, 42 S.W.2d 969.

John L. Harlan and Wilton D. Chapman for respondents.

(1) Where the proof shows that plaintiff or plaintiff's deceased upon whose actions or relationships the suit is founded is guilty of contributory negligence directly and proximately causing the injury or death forming the basis of the suit, recovery is barred as a matter of law. Mosely v. Sum, 130 S.W.2d 465; Danzo v. Humfeld, 180 S.W.2d 722. (2) It is fundamental that unless plaintiff proves by a preponderance or greater weight of the credible evidence that defendants were guilty of negligence, and that such negligence was the direct and proximate cause of the injury or death forming the basis of the suit, plaintiff's cause of action must fail and a verdict and judgment in favor of defendants must be entered.

OPINION

Tipton, J.

This is an action for damages for the wrongful death of appellant's husband, Earl Smith, resulting from injuries received when he was struck by a crane operated by respondent Reid who was employed by respondent Ruberoid Company. At the close of appellant's evidence, the circuit court of the City of St. Louis directed a verdict for respondents.

The facts as shown by the record are that Charles F. Klein had a contract with respondent Ruberoid Company to paint the interior of a building used by that company. In this building were several electric cranes used to transfer heavy material from department to department. Appellant's husband, Earl Smith, and Thomas Donnelly were working for Klein painting the interior of the plant and had been working there for four or five weeks.

On February 23, 1942, Smith and Donnelly arrived at the plant about 7:45 a.m. and changed into their overalls. At 8:00 a.m. they started mixing their paints and at about 8:10 a.m. started over to the ladder leading to the platform from whence they would climb to the beams on which they intended to work. The ladder was attached to a large "I" beam which ran vertically from the floor to the roof of the building. The ladder was attached to the east side of the "I" beam and was made of iron. Some distance above the floor, estimated by the witnesses to be from twenty-five to forty feet, a large electric crane operated from one end of the plant to the other. This crane was about seventy or seventy-five feet in length and twelve feet wide. On either end of the crane were two wheels which ran on a track or rail. The operator of the crane stood in a cab, the floor of which was about seven feet lower than the crane tracks. The stationary ladder up which Smith and Donnelly climbed in order to get to the place where they were working was located on the east side of the "I" beam and went up to the west rail. At the level of the west rail and just to the west of it, extending northward from the "I" beam, was a platform or catwalk about five feet wide. In order to go onto the platform or catwalk the men had to cross or step over the west rail on which the crane operated. Smith and Donnelly stepped over the rail and onto this platform. They then proceeded to climb up to the place where they were working on the beams.

After they had been working on the beams for about ten or fifteen minutes they found that they needed their special brushes in order to get behind the beams. Smith went down from the beams to the platform or catwalk. In order to get down from this platform to the ground floor it was necessary for him to step across the west rail upon which the electric crane operated and climb down the stationary ladder attached to the "I" beam. He went down from the beams to the platform and from the platform started across the rail and down the ladder. Just as he started down the ladder he was struck by the crane which was proceeding from the north to the south. Smith died from the injuries which he received as a result of being struck by the crane.

Only three witnesses testified in this case. They were Thomas Donnelly, James Reid and appellant. Essential facts testified to by Donnelly were that about 8:10 a.m. he and Smith started over toward the ladder which was bolted to one of the large upright beams. Just before they got to the ladder and while still on the floor they saw the crane operator in the cab of the crane. Every morning he and Smith gave the crane operator the "high sign" by which witness meant that they would wave to the crane operator. On the morning of the accident they gave the crane operator the "high sign" and the crane operator waved back to them. At that time they were about twenty feet north of the ladder.

This witness stated that he and Smith climbed up the ladder to the platform and then went hand over hand until they had climbed up to where they were working which was about ten feet above the platform. After about ten or fifteen minutes Smith started down to the floor of the plant to get some short handled brushes needed for the particular work they were doing. Smith went west to the end of the "stringer" (a board twenty-two feet long) on which they were working and went down hand over hand onto the platform. After reaching the platform he turned to go down this ladder. He had one foot on the ladder and one foot on the platform when the crane came from the north and struck him. Smith was facing south and when he first started down the ladder the crane was about twenty feet away. He further testified that he heard no bell or gong at the time but he immediately climbed down to where Smith was and by the time he got there the crane had backed up.

On cross-examination this witness testified that the crane was about ten feet away from Smith when he started to go down. He further testified as follows:

"Q. And did you sound any warning to Smith or call to him or yell at him or anything of that sort, to let him know this crane was coming toward him and only about ten feet away from him? A. No, sir.

"Q. You did not? A. No.

"Q. You could see the crane was moving? A. Yes, sir.

"Q. And there was nothing to obstruct your view of the crane, was there? A. No.

"Q. And there was nothing to obstruct Earl's view of the crane, was there? A. No.

"Q. Not a thing. And you and he, both, knew that this crane did operate along there and might operate along there at any time; isn't that true? A. Yes, sir.

"Q. In fact, you and he frequently discussed it and made it a practice of watching for it, didn't you? A. Yes, sir."

James Reid testified that he was the operator of the crane that ran into Smith; that although he had never tried to make an emergency stop, he thought one could be made in five or ten feet after allowing for "relaxing time"; that at the time of the accident he had picked up his material and started out to his department with the load; that he was watching down to see that nobody got under the material; that he at no time looked up to the place where the ladder crossed the crane rail; that as he was operating the crane it sounded like something went wrong with the motor; that he stopped the crane, crawled on top and saw Donnelly over the platform, and figuring something was wrong, moved the crane back and then went to where Smith and Donnelly were; and that he did not ring the bell during the thirty or forty feet in which he moved the crane prior to the accident.

On cross-examination Reid testified: "That load at that time that I picked up, I started to take it to my department, watching my work, that nobody got underneath this heavy load, . . ."

"Q. Did you know that Smith or anybody else was working above that morning at any time before this accident happened? A. No, sir." He further testified that he saw Smith about 8:30 a.m. that morning on the floor and did not know where Smith was going to paint that day; that they had not worked in that vicinity for at least two days before the accident and that the last time he saw Smith working was on the cafeteria floor. He described the floor of the busy department where the accident...