Koonse v. Standard Steel Works Co.

• Decision Date: 05 December 1927
• Docket Number: No. 16119.,16119.
• Citation: 300 S.W. 531
• Parties: KOONSE v. STANDARD STEEL WORKS CO.
• Court: Missouri Court of Appeals

300 S.W. 531

KOONSE v. STANDARD STEEL WORKS CO.

No. 16119.

Kansas City Court of Appeals. Missouri.

December 5, 1927.

Appeal from Circuit Court, Clay County; Ralph Hughes, Judge.

Action by Frank Koonse against the Standard Steel Works Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Lawson & Hale, of Liberty, for appellant.

James S. Simrall, of Liberty, and John F. Cook and Mosman, Rogers & Buzard, all of Kansas City, for respondent.

BLAND, J.

This is a suit for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $6,000 and defendant has appealed.

The facts show that plaintiff, a man forty-one years of age, was on September 13, 1925, and ever since the previous January or February had been, employed by the defendant as a night watchman and janitor in its factory in North Kansas City. His hours were from six o'clock at night to six o'clock in the morning. His first duty when he came to work was to "punch a clock." A clock was carried by him on a strap around his neck; there were four keys which were located in various parts of defendant's factory. Plaintiff would go to the various keys, which were numbered from one to four, and insert a key in the clock which recorded the fact that plaintiff had been at that particular location at the time indicated by the clock. Plaintiff was required to visit every hour the places where these keys were located. When he was not engaged in punching the clock, his duties were to take care of the lawn, do janitor work in the main office and in winter to fire a low-pressure boiler. He had nothing to do with the work in the main part of the factory other than to punch the clock. It was no part of his duties to clean up the shop. Defendant had a blacksmith shop situated in the southwest corner of the factory. An electric saw was located approximately opposite the center of the door of the blacksmith shop. This saw was used to cut angle iron and iron pipe, and scraps fell around the saw and would fall in a pile near the center of the door. At the time plaintiff was injured there was a pile of pipe consisting of 30 or 35 pieces of 6 to 10 inches in length near the sawhorse and in front of this doorway. On the outside of the door, on the left-hand side, was some angle iron and pipe and on the other side some tanks of steel and other things. On the day in question plaintiff, while on his way to the blacksmith shop where one of the keys above described was located, was injured by reason of stepping on a piece of iron pipe about eight or ten inches long, located about a foot or a half of a foot beyond the pile. This piece of pipe rolled and threw him against some angle iron and thence onto the floor, injuring his left knee and back. The pile of pipe and the stray piece of pipe which caused him to fall were directly in the path that plaintiff was required to use in going to the blacksmith shop, and it was impossible for him to go around the obstruction.

Plaintiff went to work at 6 o'clock on the night of Sept. 13, 1925, and the first thing that he did was to make the 6 o'clock round which required him to go into the blacksmith shop and there punch his clock. On the first round he saw in front of the door and directly in his path the pile of pipe and he stepped over the pile without anything happening, also the 8 and 9 o'clock rounds, but on the 10 o'clock round he stepped on the stray piece of iron pipe in question, resulting in his fall and injury. He was furnished with a lantern by the defendant, which was lighted by means of a storage battery. He did not use the lantern on the 6 and 7 o'clock rounds because he did not need it, but used it on the 8 o'clock round and found that the battery was so weak that it gave a poor light. By leaving the lantern unlighted for an hour the battery would recuperate to some extent and give a better light. To obtain a better battery, plaintiff would leave a note and during the day defendant would supply the lantern with a new battery. The lantern was in fairly good condition the night before his fall, so he had not left a note. Plaintiff testified that at the time he was hurt the lantern provided a very poor light; comparing the light with that furnished by a match, he said that a ray; of light was thrown 3 or 4 feet from the lantern that he carried it on his arm or hand; that he held the lantern ahead of him and tried to see the best he could but was unable to see the piece of pipe that he stepped upon; that he knew that there was a pile of pipe there but had not seen this particular piece of stray pipe before and that he "stepped over the pile of pipe as carefully as I possibly could."

There was an electric lighting system in the factory. Plaintiff had been instructed by the general manager and superintendent not to turn on the electric lights in the plant as "it cost quite a bit to burn, cost probably 75 cents an hour to run the electric lights" and "he (the general manager) told me not to turn them on. He said, he furnished me with a battery and lantern to make my rounds." At one time when the lights were on he told plaintiff to turn them off. There was an electric light near the pile of iron in question and plaintiff could have turned it on but did not do so because he had been instructed not to turn the lights on. Plaintiff testified that he "could have turned them all on if I probably wanted to and lost my job." He further testified that he would have turned on the electric light if he had been allowed to do so.

The witness McGee testified that for about two years prior to May or June, 1925, he was employed by defendant; that his duties were "mostly cleaning up around there" during the day and in winter time he also fired the furnace; that part of his duties was to keep the "scrap cleaned out around the machines and do the sweeping"; that if he did not clean the scrap up around the saw and other machinery, it was not removed; that there were times when he did not clean up the scrap because he did not have the time as defendant would tell him to help somewhere else and that would take him away from his cleaning work. Plaintiff testified that at the time he was injured he did not know whether a "clean up man" was employed by the defendant because the witness worked at night; that there probably was such a man but he did not know his name.

The petition charges three grounds of negligence; First, failure on the part of defendant to provide plaintiff a reasonably safe place in which to work in that defendant negligently and carelessly permitted iron pipe and other material to be and remain on the floor of the blacksmith shop where plaintiff was directed and required to work and walk; second, that plaintiff was required to work in darkness without sufficient light to enable him to see and observe the conditions and surroundings ; third, that defendant refused and denied to plaintiff the right to use the electric lights and the electric lighting system which was in the factory.

Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given for the reason that no negligence was shown on the part of defendant. We think there is no question but that there was evidence tending to prove at least the first charge of negligence contained in the petition. Brown v. Ry. Co. (Mo. App.) 227 S. W. 1069; Campbell v. Aunt Jemima Mills Co., 211 Mo. App. 670, 245 S. W. 620; Pyle v. K. C. Light & Power Co. (Mo. App.) 246 S. W. 979; Arnold v. Graham, 219 Mo. App. 249, 272 S. W. 90; Soltesz v. J. H. Belz Provisions Co. (Mo. Sup.) 260 S. W. 990; Cross v. C., B. & Q. R. Co., 191 Mo. App. 202, 177 S. W. 1127; Reese v. Loose-Wiles Biscuit Co. (Mo. App.) 224 S. W. 63; Johnson v. K. C. Nut & Bolt Co., 172 Mo. App. 214, 157 S. W. 665; Porter v. Mo. Pac. R. Co., 219 Mo. App. 19, 267 S. W. 964; Hunter v. Amer. Brake Co. (Mo. App.) 231 S. W. 659.

In this connection defendant insists that there was no notice actual or constructive to defendant of the existence of the scrap in the doorway. It may be inferred from the testimony that the pipe was permitted to get on the floor by the workmen at least as early as during working hours of the day upon which plaintiff was injured. The evidence shows that it was a common thing when pieces of pipe, angle iron and other such material were sawed off, for scraps to fall around the saw, some of it falling in a pile in the center of the doorway. Plaintiff testified that "he often found scraps of waste material and other substances over the floor of the factory"; that he found such material in "various places," "anywhere," "nearly every night" on his rounds. The witness McGee testified that at the time he worked for defendant he observed scraps of pipe lying around the saw; that the scraps fell on the floor in front of the door of the blacksmith shop; that frequently scraps were left on the floor in front of the shop door, that "if I didn't clean them up when I was there, there were scraps there—there were times when I didn't clean the scrap up." Another night watchman, who at one time worked for defendant, testified that when he was making his rounds as night watchman, he frequently came upon piles of scrap on the floor; that "that condition existed pretty much all the time that I worked there"; that he worked there off and on for about a year and a half. From all of this testimony it appears, in the language of the defendant in its original brief, that the leaving of the scraps on the floor about the factory "was continuous." It appears that defendant made no serious effort to keep the scrap cleaned up and, of course, the showing of its long practice of permitting such material to be on the floor, was sufficient evidence of constructive, if not actual, notice to the defendant of the existence on the floor of such material as plaintiff fell over. From the uncontradicted evidence defendant must have known that such material was being...