Mitchell v. Westport Hotel Operating Co.
| Decision Date | 10 June 1929 |
| Citation | 19 S.W.2d 528,225 Mo.App. 181 |
| Parties | EVERT B. MITCHELL, RESPONDENT, v. WESTPORT HOTEL OPERATING COMPANY, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Thomas J Seehorn, Judge.
REVERSED AND REMANDED.
Judgment reversed and remanded.
Conrad & Durham for appellant.
Clif Langsdale for respondent.
Trimble, P. J., absent.
This is an action for damages for personal injuries. There was a verdict and judgment in favor of plaintiff in the sum of $ 3,000. Defendant has appealed.
Plaintiff was the only witness at the trial other than the medical witnesses. His testimony tends to show that on July 10, 1925, he was employed by the defendant who was engaged in constructing a building in Kansas City known as the President Hotel. Plaintiff was an iron worker of ten years' experience. At the time of his injury he was engaged with another employee of the defendant, one Smith, in moving a steel I-beam from a pile of such beams. Smith stumbled over a board and dropped his end of the beam. As a result of Smith dropping his end of the beam plaintiff, at the other end of the beam, was thrown resulting in his injury.
The steel frame work of the building had been erected to the 8th or 9th floor. Plaintiff on the morning in question came to work at eight o'clock and was working on the ground floor with three other employees, one of whom was Smith, the foreman. These four were engaged from eight to nine A. M. in moving steel I-beams from a pile of a considerable number to a hoist. The hoist conveyed them to an upper floor where they were being used to construct a scaffold for the use of bricklayers. About nine A. M. Smith sent two of these employees to work upon an upper floor, Smith and plaintiff remaining below. Four more beams were needed upon the upper floor and Smith said to plaintiff "lets carry them over to the hoist." Plaintiff and Smith then proceeded to take the additional beams from the pile to the hoist. One of the beams was lifted from the pile and carried to the hoist without accident to plaintiff or Smith.
There is no testimony as to the number of beams in the pile or the way in which they were piled at the time Smith fell, except that the pile was about two and one-half feet in height and that the length of the pile was from north to south. It does not appear in the evidence as to when or by whom the beams were piled. They were fourteen feet long and weighed about 300 pounds each. They were eight inches in width and four inches thick at the flanges. Two and one-half or three feet west of the south end of the pile of beams was a mortar box. This box was about twelve to fourteen inches high, five feet in width and ten feet long. Extending toward the north from the bottom of the northeast corner of the mortar box was a 1x10-inch brace board. This board was nailed to the mortar box so that the ten-inch dimension extended up from the floor. It extended northward from the mortar box about two and one-half or three feet. There was another board nailed to the brace board about two feet from the mortar box which ran southward and upward at an angle and was attached to the mortar box. At the other or north end of the pile of beams, and about two feet west thereof, was a pine column running up from the floor. This column was about four to six feet south of the north end of said pile of beams. There was a space of from five to seven and one-half feet between the pine column and the end of the brace board. The hoist, to which the beams were being removed, was twenty-five or thirty feet southwest of the pile. In order to get the beams between the column and the mortar box it was necessary to swing the north end of the beam around to the northeast while the south end was brought up to the northwest and around the mortar box and the brace board. In this way the south end of the beam could be headed toward the hoist and when so headed the center portion of the beam was over the pile. There is no evidence of any other passageway over which the beams were or could have been carried.
Just before the accident Smith took hold of the south end of the beam and asked plaintiff to take hold of the other end. They raised the beam from the pile and started to the passageway when "the pile started to roll." Smith in his efforts to get away from the rolling beams stumbled and tripped over the brace board and dropped his end of the beam. The dropping of the beam and the additional weight upon him threw plaintiff to the left and he fell to the cement floor on his left side.
Plaintiff testified that he did not know what started the other beams to rolling, but that they were smooth and painted and had a highly polished surface and that iron against iron has a tendency to slide; that such beams as these will slide "even on wood." Apparently the beams on the pile were caused to roll by the removal of the beam in question. Just what was done to cause the pile to roll is not disclosed in the testimony, other than that a beam was taken therefrom.
The petition alleges that plaintiff was in the employ of the defendant as an iron worker and that he was ordered and directed to assist the foreman of the defendant in removing the beam in question; that while plaintiff and the foreman were endeavoring to remove the beam from the pile the other I-beams in said pile started to roll and fall towards plaintiff and the foreman thereby causing the foreman, in his efforts to get away from the rolling and falling beams, to let loose and drop the end of the beam that he was carrying causing plaintiff to be injured. The negligence charged in the petition and relied upon by plaintiff reads as follows:
It is insisted by the defendant that the court erred in refusing to...
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