Kremer v. Eagle Manufacturing Co.
| Decision Date | 01 October 1906 |
| Citation | 96 S.W. 726,120 Mo.App. 247 |
| Parties | W. H. KREMER, Respondent, v. EAGLE MANUFACTURING COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Edward P. Gates, Judge.
AFFIRMED.
Judgment affirmed.
Warner Dean, McLeod, Holden & Timmonds for appellant.
(1) The court committed error in overruling defendant's demurrer to the evidence at the close of the plaintiff's case. (a) Because the evidence fails to show any negligence on the part of the defendant. (b) Because plaintiff's evidence shows that his injury is attributed only to his own negligence. Yocum v. Trenton, 20 Mo. 489; Jordan v Hannibal, 87 Mo. 673; Huffman v. Railroad, 78 Mo. 50; Wood on Master and Servant, sec. 419; Shearman and Redfield on Negligence, sec. 99; 2 Labatt, sec. 833, and authorities cited thereunder. (2) Where plaintiff's own case establishes contributory negligence, there is no disputed fact for the jury to pass upon, and the matter is one of law for the court. Roberts v. Tel. Co., 166 Mo. 384; Hudson v. Railroad, 101 Mo. 13; Warmington v. Railroad, 46 Mo.App. 171; Dickey v. Dickey, 111 Mo.App. 304; 1 Labatt's Master and Servant, sec. 32; 20 Am. and Eng. Ency. of Law (2 Ed.), 69; Lynch v. Railroad, 159 Mass. 536; Barstow v Railway, 143 Mass. 535; Wiggins Ferry Co. v. Hill, 112 Ill.App. 475; Brewer v. Railroad, 23 N.W. 440; Stone v. Mfg. Co., 4 Oregon 52; 20 Am. and Eng. Cy. of Law (2 Ed.), 145; The Louisiana, 74 F. 748; Taylor v. Mfg. Co., 143 Mass. 470; Young v. Miller, 167 Mass. 224; Powell v. Iron Co., 98 Wis. 35; 20 Am. and Eng. Ency. of Law, 144; Smith v. Railroad, 113 Mo. 70; Blessing v. Railroad, 7 Mo.App. 594; s. c., 70 Mo. 410; Kelly v. Railroad, 11 Mo.App. 1; Claybaugh v. Railroad, 56 Mo.App. 630; Beck v. Mfg. Co., 82 Iowa 286. (3) The court committed error in overruling defendant's demurrer to the evidence at the close of the whole case.
Russell Field and J. L. Lorie for respondent.
(1) The court did not err in overruling defendant's demurrer to the evidence, either at the close of plaintiff's case or at the close of the whole case. Moore v. Railway, 73 Mo. 438; Degge v. Exp. Co., 64 Mo.App. 102; Plow Co. v. Sullivan, 158 Mo. 440; Caldwell v. Ripper, 84 Mo.App. 563; Building Ass'n v. Grocer Co., 82 Mo.App. 245; Webb v. Railway, 92 Mo.App. 543; Cohn v. Kansas City, 108 Mo. 387; Williams v. Railway, 153 Mo. 487. (2) The law indulges the presumption that the party injured was in the exercise of ordinary care and diligence in the discharge of his duty at all times, until the contrary appears. Parsons v. Railway, 94 Mo. 293, 294; Crampley v. Railway, 111 Mo. 158; Clark v. Shoe & Clothing Co., 16 Mo.App. 463; Busching v. Gas Co., 73 Mo. 219; Pelty v. Railway, 88 Mo. 320; Crane v. Railway, 87 Mo. 594; Taylor v. Railway, 26 Mo.App. 342; Blanton v. Dold, 109 Mo. 75; Parsons v. Packing Co., 96 Mo.App. 381; Henry v. Railway, 109 Mo.App. 492; Musick v. Packing Co., 58 Mo.App. 335; Gibson v. Railway, 46 Mo. 163; 20 Am. and Eng. Ency. Law, 58. Browning v. Kasten, 107 Mo.App. 62; Wood on Master and Servant, sec. 359, p. 732. (3) There is a wide difference in the inspection of a place or appliance for the purpose of ascertaining its condition, and the use of a place or appliance upon the assumption that it is safe. Gutridge v. Railway, 105 Mo. 520; Hester v. Packing Co., 84 Mo.App. 451; Parsons v. Packing Co., 96 Mo.App. 381; Irmer v. Brewing Co., 96 Mo.App. 17; Musick v. Packing Co., 58 Mo.App. 323; Nash v. Brick Co., 83 S.W. 90; Porter v. Railway, 71 Mo. 66; Dale v. Railway, 63 Mo. 459; Labatt on Master and Servant, secs. 402a, 403, 408, 409; Wood on Master and Servant, sec. 376, p. 750; Labatt on Master and Servant, sec. 330, p. 814, 815, 816; (4) There is ample evidence to show negligence on the part of defendant.
--Plaintiff was injured while in the employment of defendant and alleges that his injuries were the direct result of the negligence of defendant. He recovered judgment in the sum of $ 2,250 and defendant appealed. The issues presented by the pleadings and submitted to the jury in the instructions given were the negligence of defendant and the contributory negligence of plaintiff. Defendant unsuccessfully requested the giving of an instruction in the nature of a demurrer to the evidence and complains here of the refusal of the court to give that instruction. It is argued by defendant that the facts in evidence most favorable to plaintiff fail to show any negligence on the part of defendant, and do show that plaintiff himself in law was guilty of negligence that directly produced his injury. Facts in evidence pertinent to the inquiry thus presented are as follows:
On the date of the injury, March 14, 1905, defendant owned and was operating a factory in Kansas City, Kansas, for the making of agricultural implements, and plaintiff was the foreman of its foundry. The various activities of the business were conducted in a one-story building, 500 feet long by 80 feet wide, the long dimension being laid in an east and west direction. A row of wooden pillars for the support of the roof ran through the middle of the building the full length thereof. An aisle immediately north of this line of supports bisected the floor space and furnished a passageway from one end to the other. On either side of this aisle were located the different departments of manufacture. The foundry occupied the southeast corner and the woodworking department the southwest corner. Between them were two other departments.
Our concern is with the woodworking room, for it was there plaintiff was injured by tripping on a defective elevation in the floor. That room was 225 feet long by 40 feet wide. It was uninclosed on the north save by the line of pillars mentioned. On the south and west it was inclosed by outer walls of the building and on the east by a partition, separating it from the adjoining department. The south wall was well supplied with windows. The roof on both sides was shouldered in on an inclined plane a short distance and then raised on perpendicular walls six or eight feet high forming what is known as a "texas." These overhead walls were provided with windows through which light was shed towards the middle of the room. The space in the wood shop was well filled with machinery, materials, bins, etc., systematically arranged to facilitate the work conducted. Owing to the fact that heavy loads had to be moved on trucks in different directions through the rooms, the floor was constructed of heavy planks twelve inches wide by two inches thick, laid flatwise on a bed of cinders and nailed to imbedded stringers. Lengthwise the course of these planks was east and west.
At about eleven o'clock in the forenoon plaintiff found it necessary to go from the foundry to the wood shop to present a requisition to the foreman of that shop for some materials needed in the foundry. After leaving the foundry he passed westward along the main aisle until he reached the east end of the wood shop. From this point an aisle extended southward to a door in the south wall. Plaintiff proceeded a few steps along this aisle looking for the foreman and, observing him sixty or eighty feet to the west, turned westward and walked along an open passageway running in that direction. He walked at an ordinary gait, was looking towards the foreman whose attention he endeavored to attract, but noticed the way ahead of him appeared to be clear and unobstructed. He had walked westward perhaps fifteen feet when the toe of his advancing foot struck against and slipped under the end of a plank in the floor that had become loosened and was elevated above the surrounding surface. The result was a fall that fractured his knee cap. An examination of the place disclosed the fact that the end of the plank on the under side was very rotten and by warping had turned upward. Where plaintiff's foot struck the wood was shattered and the plank was split back from the end a distance of about fifteen inches. On the side of the split where the blow was delivered the end of the board was raised four or five inches and on the other side about an inch above the surface of the floor. The stringer to which the board had been nailed was found to be rotten. The passageway at this point was about three and one-half feet wide and ran between continuous lines of machines, loaded trucks and other obstructions to the free passage of light, so that the place was cast in deep shadow. It was shown that the surface of the floor had by wear become somewhat uneven and plaintiff knew of this condition, but had no knowledge of any defects that called for the exercise of special care by one walking along the passageway and being intent on his mission, looked at the floor only in a general way.
Defendant contends that no negligence should be imputed to it under the facts in proof, because it does not appear that the defect existed for any length of time before the injury. The mere fact that a servant is injured in the discharge of his duties by a...
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