Lawley v. Kansas City

• Decision Date: 02 December 1974
• Docket Number: No. KCD,KCD
• Citation: 516 S.W.2d 829
• Parties: Joseph E. LAWLEY, Respondent, v. KANSAS CITY, Missouri, Appellant. 26628.
• Court: Missouri Court of Appeals

Page 829

516 S.W.2d 829

Joseph E. LAWLEY, Respondent, v. KANSAS CITY, Missouri, Appellant.

No. KCD 26628.

Missouri Court of Appeals, Kansas City District.

Dec. 2, 1974.

Aaron A. Wilson, City Counselor, Joseph R. Hachey, Thomas C. Clark, Asst. City Counselors, Kansas City, for appellant.

Thomas A. Sweeny, Edward F. Aylward, Kansas City (Popham, Popham, Conway, Sweeny & Fremont, Kansas City, of counsel), for respondent.

Before PRITCHARD, P.J., and SWOFFORD and SOMERVILLE, JJ.

PRITCHARD, Presiding Judge.

Plaintiff recovered judgment against appellant City in the amount of $15,000.00 for an injury to his foot when a 500 pound gate valve of a water main fell upon it. Plaintiff was a foreman of a two-man labor crew, and was working in a hole or pit when the gate valve fell as it was being lowered into the pit in a cable 'sling' by a crane truck crew of the City.

The City makes four points, and ten subpoints. The most hotly contested issues are whether plaintiff properly pleaded or made a submissible case under the doctrine of res ipsa loquitur. The time-honored and often cited case of McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559 (Mo. banc 1932), sets forth the settled rule for the application of the doctrine: 'In general and on principle the doctrine res ipsa loquitur does not apply except when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence.' If these elements are present under the evidence, and under circumstantial evidence, the doctrine of res ipsa loquitur is applicable, Parlow v. Dan Hamm Drayage Co., 391 S.W.2d 315, 323(9--11) (Mo.1965); and absent specific proof of negligence, the jury may infer negligence. Thompson v. Kansas City Public Service Co., 232 Mo.App. 1124, 114 S.W.2d 145 (1938).

Plaintiff, at the time of trial, had been working as a foreman for the City for about 20 years. The injury resulting in this action occurred on May 1, 1966, and plaintiff continued to work as a foreman until a second accident injured him when a fire plug exploded in his face in August, 1970. The second accident, but not the first, was covered by the Workmen's Compensation Act since the City had not yet elected to come under the Act when plaintiff was first injured.

Plaintiff was called by the City to go to 23rd and Belleview to attend to the water main on April 30, 1966. He arrived there about 8:30 a.m., with instructions to take off the dome, or top part, of a 36-inch valve so that the two gates of the valve could be replaced. He had two men with him. Plaintiff and his men discovered on loosening the nuts that the water, which had tremendous pressure, had not been turned off, and they had to wait about 4 hours after it was turned off for the water to drain from the main. When he pulled the dome away from the bell, or lower part of the valve, plaintiff found that the gates were not in it. 'They had took them out and took them away from there, so they could clean and fix them. And what they had to do to them I don't know, * * *.' The dome was then taken out, hoisted to the surface from the pit and put on a form where it could be cleaned, so that when the gates arrived it could all be put back together. After the dome was cleaned, the ground was then levelled in the pit by plaintiff.

When the valve gates arrived at the site, plaintiff was in the pit, and he put the bottom valve gate in place. He had nothing to do with lowering the bottom gate into the hole, but was putting a timber in so that they could slide the valve into place when it was gotten together. At the time the gates were lowered two superintendents, Mr. Johnson and Mr. Dawson, were there. Mr. Johnson told plaintiff and his crew to work as quickly as they could, but to take their time to get the valve together right. A crane operator got in the cab to lift the second 500 pound gate, and another man got on the back of the truck to help lift it and to bring it around where it could be lowered into just the right spot on the first valve. It was lowered to just a few inches above the part where it was to sit, and was swung around. Plaintiff told the other men to move back out of the way and he moved up to put his hands on the gate to stop it from spinning, 'to get where the stem goes into the gate, and just before it got there, I went to catch it as it get there, and it made a squeak and came toward me, and I jumped about six-feet or something like that, as near as I can know, I jumped about six feet backwards, away from it, and I never got any further away from it than I were at the time when it started back, but it was going down edgeways, and when I hit the ground, this foot (indicating) up in the air, and on this foot (indicating) it fell edgeways on my foot, and I couldn't move it.' Plaintiff never got a chance to touch the valve gate.

In addition to his testimony that the gate valves were missing from under the dome when he removed it, plaintiff testified: 'Q. And did you participate--is it your recollection that you participated in any way in placing the cables around the top dome, or the top gate-- A. No, sir, I didn't-- Q.--to lift it off the truck? A. No, sir, I didn't. Q. Did you see who did it? A. No, sir, I didn't. It was that way when they--it was supposed to be that way when they left from wherever they brought them from, so I understood. Q. Oh. One of your workers around there did it, put the straps or cables around the gate then? A. I don't think so. Q. Well-- A. Because-- Q.--did some fellow worker put the cables on? MR. SWEENY: Chuck, if you would let him finish-- A. Wherever it was cleaned. Wherever it was cleaned. Q. (By Mr. Lewis) Do you know of your own knowledge where these gates were cleaned? A. I really don't. Q. You have no knowledge? A. I don't know whether they carried them to North Town, I don't know whether they carried them down in the West Bottoms to the Pumping Station, I don't know whether they carried them to the Water Department; I does not know. Q. Well, is it your testimony, Mr. Lawley, that there are about three different places where these valves could be cleaned? A. Yes. I guess it is. Q. And are all of these three places maintained, owned and controlled by the City? They are City shops? A. Yes. Q. And City people work on them there? A. Yes. Q. You have been around these shops, haven't you? A. Yes. Q. In your period of twenty-two years with the City, why, you have been in all three of these places? A. Yes but I don't know--I didn't even know the valve was took apart until the evening I got off from work and they asked me would I work down there the next day, and I told them 'Sure'.' The City put on no evidence.

The City first says that plaintiff's petition failed to state a claim upon which relief could be granted because it failed to allege, and nothing in the evidence established, that the City failed to exercise ordinary care to make plaintiff's place to work reasonably safe, nor that it furnished him unsafe tools or instrumentalities to do his job, as is required in a master-servant action. Plaintiff pleaded: the water valve being suspended from the cable of a crane suddenly and unexpectedly slipped, causing his left foot to be injured; the occurrence was an unusual event and would not have occurred but for the negligence of the City or one of its employees; that plaintiff did not know what caused the cable to slip, but that the City had such information as the instrumentality was in the exclusive control of the City, its agents, servants and employees. Under the McCloskey case, supra, these are sufficient allegations to bring this case within the res ipsa loquitur doctrine. Plaintiff does not ground his case upon any specific allegations of failure to provide him with a safe place to work or to provide him with safe tools or instrumentalities, nor was he required to adopt any such theories for recovery. The City's cited case of Coin v. John H. Talge Lounge Co., 222 Mo. 488, 121 S.W. 1 (1909), was not a res ipsa loquitur case. Point IA is overruled.

By Point IB, the City says that plaintiff failed to adduce any evidence to prove its negligence was the proximate cause of his accident to the exclusion of other reasonable inferences as required in a properly submissible res ipsa loquitur case. It argues: 'Plaintiff's evidence totally failed to adduce any evidence which would give rise to the singular presumption that defendant's negligence caused the accident to the exclusion of other reasonable theories which were equally inferable as to the cause of this accident such as: negligence on the part of fellow employees * * *', such as the crane operator (or his helper), assumption of risk, and plaintiff's own contributory negligence in failing to check the cable and sling to see that they were in safe condition. The City relies upon Frazier v. Ford Motor Co., 365 Mo. 62, 276 S.W.2d 95 (Mo. banc 1955), for the aforesaid contended proposition. Citing 35 Am.Jur., Master and Servant, § 500, p. 920, the court said to the effect that the res ipsa loquitur rule is never to be applied except where the evidence not only supports the conclusion of negligence, but also reasonably excludes every other. The Frazier case was cited in Littlefield v. Laughlin, 327 S.W.2d 863, 867 (Mo.1959), as was Grindstaff v. J. Goldberg & Sons Structural Steel Co., 328 Mo. 72, 40 S.W.2d 702 (1931), which was quoted in Frazier to the effect that the evidence must reasonably exclude every other cause than that encompassed within the res ipsa loquitur theory. The Littlefield court said, 'In that respect those cases are not in accord with the recognized principles of the res ipsa loquitur doctrine, and are contrary to recent rulings of this court.' The more recent ruling...