McLaughlin v. Creamery Package & Manufacturing Co.

• Decision Date: 19 June 1939
• Docket Number: No. 19461.,19461.
• Citation: 130 S.W.2d 656
• Court: Missouri Court of Appeals
• Parties: McLAUGHLIN v. CREAMERY PACKAGE & MANUFACTURING CO.

130 S.W.2d 656

McLAUGHLIN v. CREAMERY PACKAGE & MANUFACTURING CO.

No. 19461.

Kansas City Court of Appeals. Missouri.

June 19, 1939.

Rehearing Denied July 3, 1939.

Appeal from Circuit Court, Jackson County; Emory H. Wright, Judge.

"Not to be published in State Reports."

Action by Charles L. McLaughlin against the Creamery Package & Manufacturing Company for injuries claimed to have been received by plaintiff while repairing a roof on a building occupied by defendant. From a judgment overruling plaintiff's motion to set aside an involuntary nonsuit taken by plaintiff, with leave to move to set the nonsuit aside, after trial court indicated that defendant's instruction in nature of demurrer to evidence would be given at close of plaintiff's evidence, plaintiff appeals.

Affirmed.

Allan R. Browne, Wilbur B. Ennis, and Theo. C. Anderson, all of Kansas City, for appellant.

Watson, Ess, Groner, Barnett & Whittaker, of Kansas City, for respondent.

CAMPBELL, Commissioner.

Plaintiff's petition alleges that while he was engaged in repairing a leak in a corrugated roof under "independent contract" with defendant a support of the roof broke when he stepped thereon which caused him to fall and be injured; that defendant negligently allowed and permitted said support to be and remain in a damaged and rotten condition, and negligently failed to warn plaintiff of such condition when it knew or by the exercise of ordinary care could have known that the roof was in a defective and dangerous condition in time to have reasonably repaired the same or to have given him warning thereof and thereby have avoided injury to him; that defendant negligently failed to repair or give warning of such condition, and negligently "assured plaintiff of the safety of said roof and as a direct result of such negligence" plaintiff was injured.

The answer pleaded the general issue, contributory negligence and assumption of risk. On trial to a jury the court at the close of plaintiff's evidence marked given an instruction requested by defendant in the nature of a demurrer to the evidence and indicated the instruction would be given to the jury. Thereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside, and judgment was rendered for the defendant. Plaintiff's motion to set aside the nonsuit was overruled and he appeals.

The evidence was to the effect that at the back of the defendant's building in Kansas City it maintained a dock which was used for loading and unloading merchandise over which there was a corrugated tin roof; that four of the sheets of the roof were in disrepair, full of small holes through which water leaked; that plaintiff and his brother Harry were partners engaged in repairing such roofs and had been thus engaged for several years; that in November of 1937 they called the attention of defendant's manager to the condition and solicited the work of replacement of the four strips, each of which was 30 inches wide and nine feet and six inches long. In about a month thereafter they again went to see defendant's manager and at that time the parties agreed that plaintiff and his brother would replace the four strips with new ones. The plaintiff testified in direct examination that at that time he said to the manager, "The dock roof is solid, is it?" To which the manager replied: "Yes, it is solid, and not long since I had overhauled the woodwork on the dock roof." Later in his cross examination is the following:

"Q. Do you say that Mr. Shafer (defendant's manager) told you he had just had the roof repaired? A. No, sir.

"Q. What was it Mr. Shafer said? A. I said he told me about it being solid, that he had it repaired recently, the woodwork. * * *

"Q. Do you say Mr. Shafer told you then the roof was all right? A. No, he said the woodwork was all right, that he had it overhauled recently.

"Q. How recently, did he tell you? A. No.

"Q. Did he tell you who overhauled it? A. No, sir, that was none of my business.

"Q. Did you see any work about there that looked new? A. I never paid attention to it.

"Q. Mr. Shafer told you he just had it overhauled? A. No, sir, didn't say `overhauled.'

"Q. What did he say? A. He said the woodwork was all right, that he had it overhauled recently."

Plaintiff further testified that defendant had no control over him, that he furnished his own appliances, materials, and adopted his own plan in doing the work; that on December 6 he went upon the roof, removed two of the strips, loosened the third strip at the top, started toward the lower end when the timber underneath the strip broke, caused him to fall and be injured; that he "didn't pay any attention" to the frame work of the roof. He further testified that he...