McGinnis v. Hydraulic Press Brick Co.

• Decision Date: 14 July 1914
• Docket Number: No. 16696.,16696.
• Citation: 261 Mo. 287,169 S.W. 30
• Parties: McGINNIS v. HYDRAULIC PRESS BRICK CO.
• Court: Missouri Supreme Court

169 S.W. 30

261 Mo. 287

McGINNIS v. HYDRAULIC PRESS BRICK CO.

No. 16696.

Supreme Court of Missouri, Division No. 2.

July 14, 1914.

1. MASTER AND SERVANT (§§ 101, 102)—MASTER'S LIABILITY—PLACE FOR WORK.

A master has the right to arrange his own premises in any way which suits his convenience, and, as to a servant thereon in the line of his duty, injured by stumbling over a foot or mud scraper at the entrance of the office, was only required to furnish him a reasonably safe place of ingress and egress.

2. MASTER AND SERVANT (§ 235)—CONTRIBUTORY NEGLIGENCE—PLACE FOR WORK.

Plaintiff, on his master's premises in the line of his duty and somewhat familiar therewith, and who on leaving the office in broad daylight and in an open space failed to see a foot scraper outside of the entrance to the office, permanently fixed and plainly visible, and tripped over it to his injury, was, as a matter of law, guilty of contributory negligence.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Action by William T. McGinnis against the Hydraulic Press Brick Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Action for personal injuries, tried in the circuit court of the city of St. Louis. At the close of the plaintiff's evidence the court nisi instructed the jury that, upon the proof adduced, plaintiff was not entitled to recover. Thereupon plaintiff took an involuntary nonsuit with leave to move to set same aside. Thereafter, his motion to set aside this nonsuit being by the court overruled, he appealed.

The negligence pleaded is that which the courts for convenience have denominated common-law negligence, as distinguished from negligence bottomed upon the violation of a statute or an ordinance. The injuries accrued to plaintiff from his having tripped upon a mud scraper, and having been thereby thrown with considerable violence to the brick pavement, sustaining in his fall injuries to the wrists of both hands. This mud scraper was maintained outside of the entrance to the office of defendant. The specific elements of the negligence alleged by plaintiff and on which he bottoms his right to recover are thus succinctly stated by him in his petition:

"(1) In placing and maintaining the mud scraper, by which plaintiff was caused to fall, of the size and character and in the location above stated; (2) in permitting the iron portion of said scraper to become bent over as stated, and in permitting same to remain in that condition; (3) in failing to furnish plaintiff a reasonably safe place to pass in and out of said building in the course of his employment, because of the presence of said mud scraper as then and there maintained by defendant."

The answer was: (1) A general denial; (2) a plea of assumption of risk; and (3) contributory negligence of the plaintiff.

The locus in quo is graphically shown by the below picture:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Plaintiff asked for $15,000 as damages; hence our jurisdiction. The salient substantive facts as shown by the evidence of the plaintiff (defendant, of course, put in none) are fairly set out by plaintiff, who, in fairness to himself, we permit to speak for himself, adopting as ours his statement of the facts, with minor emendations: Defendant's office building was situated on defendant's premises on the west side of Kingshighway between the tracks of the Missouri Pacific and the Frisco Railroads. Kingshighway ran north and south, and at the time of the injury to plaintiff, October 7, 1910, a viaduct was being constructed along Kingshighway, across the railroad tracks, and in front of defendant's premises. The office building in question was of brick, and the main line of it was 8 feet west of, and parallel with, the west line of Kingshighway. In other words, the building sat 8 feet back from the property line. In front of defendant's building all the way out to where the construction work was going on, about 26 feet, there was a uniform pavement of brick without any curbing or breaks. This building was constructed with rooms on either side of a central hall. The entrance to the building was by three or four steps, and on either side of the approach to these steps there was a mud scraper intended for use of persons entering the building in scraping the mud from their shoes. These mud scrapers, one upon the north and one upon the south of the entrance, were about 7 feet apart, and were about 10 inches long, and stood at right angles to the line of lowest step and about 2 feet in front of—that is, east of—it, and were entirely surrounded by the brick-paved space. Each scraper consisted of an oak plank 10 inches wide by 15/8 inches thick inserted in the ground with its width running east and west, the eastern edge of the scraper being 3 feet 8½ inches west of the western line of Kingshighway. The top of the wooden post stood 5 inches above the ground, and to this post there was bolted a piece of sheet iron 10 inches long and three-sixteenths of an inch thick, which stood, when in its upright position, about 2¼ inches above the wood. For some two weeks or more prior to the 7th of October, 1910, the iron portion of the northernmost scraper had been bent down towards the south so that it stood horizontally about 4 inches above the pavement and extending 3 1/8 inches southwardly from the wooden post to which it was fastened. Plaintiff was an employé of the defendant, whose duties, amongst other things, it was to go to different localities in the city where defendant was delivering brick for paving purposes, and to there receipt for the brick as it was delivered by the wagons. On the day before his injury he had been receiving brick at a locality on Penrose street, and had been instructed by his immediate superior to call up the office to ascertain what job he was to go to the next day. This the plaintiff tried to do, but did not succeed in getting connection with the office by phone, and so on the next morning, having plenty of time, he went down to the office building in question to see Mr. Pleasant, the shipping clerk, from whom he was to receive the instructions as to where to go to work. This was a new building, about four or five months old, and Mr. McGinnis had been in it about three or four times prior to the occasion in question. He went into the building about 7 o'clock in the morning and got his instructions from Mr. Pleasant, and then went out of the building to go to the locality where he was to work. As he came out the door at about 7:30 o'clock, on what plaintiff says he "supposes was a bright morning maybe a little cloudy," he noticed that between the building and a hole in the street where the viaduct work was going on—a distance of about 26 feet—a wagon was standing from which lumber was being unloaded, and driving north just in front of the building, and within about 2½ feet of the lowest step, was one of defendant's loaded brick wagons. Mr. McGinnis' destination from the building was toward the north along Kingshighway, and as he came out of the building and down the steps he saw that there was room for him to pass between the steps and the wagon driving north, but as he started northwardly his right foot caught under the horizontally projecting iron portion of the northernmost mud scraper, causing him to fall forward to the street, whereby his wrists were badly hurt, and he suffered the injuries for which he here sues. He was unable to arise, but was helped up by some men who saw him fall, and was sent by defendant to a doctor, and thence to his home. As stated, plaintiff had been in this building three or four times before, but had not, he swears, noticed these mud scrapers. One witness testified that about two weeks before the plaintiff's injury witness had heard defendant's superintendent tell one of its employés to straighten up this bent-over mud scraper.

Kinealy & Kinealy, of St. Louis, for appellant. Garner W. Penney and Percy Werner, both of St. Louis, for respondent.

FARIS, J. (after...