Marlowe v. Kilgen
Decision Date | 11 June 1923 |
Docket Number | No. 23501,23501 |
Citation | 252 S.W. 424 |
Parties | MARLCOW v. KILGEN |
Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; D'ranklin Miller, Judge.
Action by M. V. Marlowe against Charles G. Kilgen, doing business under the firm name and style of George Kilgen & Son. Judgment for defendant, and plaintiff appeals. Affirmed.
Coffman & Jackson, of St. Louis, for appellant.
Holland, Rutledge & Lashly, of St. Louis, for respondent.
Statement.
On January 20, 1921, appellant filed in the circuit court of the city of St. Louis, Mo., a petition, in which he sought to recover of respondent damages on account of personal injuries alleged to have been sustained while in the service of said defendant An amended petition was filed, on which the case was tried, and it is alleged therein that said defendant maintained on his premises a certain dry kiln, heated with steam pipes therein, for the purpose of drying and seasoning lumber. That part of the amended petition, which relates to the alleged negligence of defendant reads as follows:
"Plaintiff further states for his cause of action against defendant herein that on or about the 1st day of July, 1920, the said defendant negligently ordered, instructed, and required plaintiff to pile lumber and work in the abovedescribed kiln, which was then too hot for plaintiff to work in and perform said duties, negligently ordered plaintiff to work in said kiln when defendant knew, or by the exercise of ordinary care could have known, that said kiln and the place where plaintiff was ordered by the defendant to work was then at a very high degree of heat, and therefore dangerous and unsafe for plaintiff to work therein without, at short intervals of time, coming out of said kiln and cooling himself, negligently failed to turn the heat off in said kiln while plaintiff was piling lumber therein, and thereby make said kiln safe for plaintiff, negligently failed to give plaintiff any timely, reasonable, and sufficient warning of the degree of said heat, and its intensity, negligently failed to give plaintiff any reasonable and timely instruction not to stay and work in said heat without coming out and cooling himself, negligently failed to provide said kiln with an exhaust fan, negligently failed to then and there ventilate said kiln, negligently failed to reduce the temperature in said kiln before directing and instructing plaintiff to enter therein and perform said duties to defendant, negligently failed to furnish reasonably sufficient light in order that plaintiff could see how to perform his duties as a servant of defendant, and the said defendant by said negligence, while plaintiff was working in said kiln, piling lumber therein, and while on top of a pile of lumber, in the performance of his duties as a servant of defendant, and while acting within the scope of his employment, and at a time when plaintiff felt himself becoming too hot, and while making a hurried exit by reason thereof, directly and proximately caused and permitted plaintiff to fall from said pile of lumber, sustaining a fracture of the skull and numerous cuts," etc. (Italics ours.)
It is alleged that the foregoing acts of negligence caused plaintiff's injuries, which are set out with great particularity. The answer contained a general denial and a plea of contributory negligence. The reply was a general denial.
Aside from the two doctors, who were examined as to plaintiff's injuries, he was the only witness in his own behalf, and testified substantially: That he was 63 years of age, and, on July 1, 1920, was stacking lumber for defendant at his organ factory in said city of St. Louis; that he was engaged in carrying lumber from the yard into defendant's kiln, where said lumber was to be dried; that the dimensions of said kiln were about 18 feet by 20 feet, and about 10 feet high; that said kiln was made of brick, and had only one door on the east end; that the lumber in this kiln was dried from the use of heated pipes running through the same; that he had piled lumber in the kiln on one occasion before July 1, 1920, but there was no heat In the kiln at that time; that the lumber was stacked so as to have the length of same east and west; that the first stack was on the north side of kiln, the second stack in the middle of the kiln; that the stacks were made by laying sills on the floor; that a layer of lumber five or six feet wide was laid on the sills, and sticks placed on the above layer, then another layer of lumber would be placed on the sticks, and so on; that the first or north pile extended as high as it could go; that he commenced piling this lumber in the kiln about 7 o'clock on the morning of July 1, 1920; that when he commenced work that morning there was a stack of lumber in the kiln, on the north side reaching as high as it could go (referred to as No. 1), and there was about two-thirds of a stack next to it (mentioned as No. 2); that he continued to work in the kiln until about 4 o'clock in the afternoon, when he was hurt; that there was an electric light just over the door of said kiln; that this light was about 7 feet above the door of the kiln, and stuck out about 15 or 13 inches; that on the day of the accident It had sawdust all over it, which darkened it like a shade, and made it appear like moonlight; that it was pretty dark in the northwest part of the kiln, where he went after sticks; that he had laid some loose lumber on stack No. 2, with the view of building a third stack; that he commenced getting the lumber he had laid on stack 2 to put on stack 3 which he was building, and lacked one plank of having a layer done. He testified in chief, as follows:
A. No, sir; I never noticed.
He further testified that, after getting this board to finish the layer on No. 3, he went to get a stick to put on the pile, and when he started either his foot slipped, or the lumber tilted, and he fell. On direct examination plaintiff testified, as follows:
On cross-examination plaintiff testified as follows:
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