Moore v. James Black Masonry & Const. Co.

• Decision Date: 05 May 1930
• Docket Number: No. 16927.,16927.
• Citation: 27 S.W.2d 765
• Parties: MOORE v. JAMES BLACK MASONRY & CONST. CO.
• Court: Missouri Court of Appeals

27 S.W.2d 765

MOORE v. JAMES BLACK MASONRY & CONST. CO.

No. 16927.

Kansas City Court of Appeals. Missouri.

May 5, 1930.

Appeal from Circuit Court, Jackson County; C. A. Burney, Judge.

"Not to be officially reported."

Suit by J. A. Moore against the James Black Masonry & Construction Company. From a judgment for plaintiff after a motion for new trial was denied, defendant appeals.

Affirmed.

Harris & Koontz, of Kansas City, for appellant.

Clif Langsdale, of Kansas City, for respondent.

BARNETT, C.

This is a suit for personal injuries. The plaintiff testified that he was employed by the defendant in the work of laying a water main in North Kansas City, Mo. The water main was being constructed of steel pipes, seven feet in diameter. The ditch was being dug with a machine called a clam shell which threw the dirt from the excavation upon the ground at the side of the ditch. The pipe was swung into position with an apparatus known as a tripod which consisted of three large timbers which were fastened together at the top and which were about fourteen or sixteen feet long. Swung from the apex of the tripod was a chain block, much like an ordinary block and tackle, which was about as large as a bushel basket. The tripod weighed between 600 and 800 pounds and was moved by hand from place to place as the work of laying the pipe progressed. It required about fourteen men to move the tripod from place to place. On June 14, 1926, the tripod was standing so that two legs were upon one side of the ditch and one leg was upon the other side. It had been placed upon the loose dirt which had been thrown out of the excavation, and this dirt had become wet and muddy. One of the legs of the tripod sank about eighteen inches into the loose dirt, and it was necessary to readjust it. A 2×4 timber was nailed to the leg of the tripod and was long enough that two men could take hold on either side, thus affording a hold to enable four men to lift at once. One Charlie Webster directed three men, of whom plaintiff was one, to pull the leg of the tripod out of the dirt. Two took hold of the 2×4 on one side of the leg and the plaintiff took hold on the other side. The plaintiff testified that the leg of the tripod was about 3½ feet from the edge of the ditch and that he was standing upon the soft muddy dirt which sloped down to the ditch; that on account of the weight of the tripod he was lifting with all his strength, when the dirt and a part of the bank of the ditch gave way under his foot and he slipped and fell into the ditch thereby receiving injuries. One Palmer was the general foreman, but he was not present when this work was done. Plaintiff testified that when Palmer was not present Webster told the men where to work and what to do.

"Q. Now did Palmer tell you from whom you should take directions or orders when he was not on the job?

"Mr. Harris: Just a minute. I object to that as leading and suggestive. I object to it for the further reason that there was no evidence that Mr. Palmer had the right to delegate any authority to any other person.

"By the Court: Well, you may state what Mr. Palmer said to you, if anything, with reference to instructions in his absence.

"Mr. Harris: The objection, I take it, is overruled?

"By the Court: Yes. (To which ruling the defendant excepted.)

"A. He told me that Charlie would show me what to do. He said, `I am looking to Charlie for this work.'"

On the day the plaintiff was injured the foreman told the plaintiff to go with Charlie and that two other men would go with Charlie to line the pipe up.

The petition alleged three acts of negligence, namely: (1) The negligent order of the foreman to plaintiff to do the work of lifting the leg and standing on the bank in the condition it was in, when the foreman knew of the condition and that because of the strain placed upon the same by the weight of the plaintiff and the other workmen, the bank would give way and cause plaintiff to be thereby injured; (2) negligence in failing to exercise ordinary care to furnish plaintiff with a reasonably safe place to work; (3) negligence in failing to furnish a sufficient number of men to do the work. At the close of the evidence defendant offered an instruction in the nature of a demurrer to the evidence which was overruled. Thereafter, the defendant offered no withdrawal instructions, but offered instructions which were given by the court in which defendant submitted to the jury the question as to whether or not Webster knew or should have known that in giving the order to the plaintiff he was placing him in a position of danger, and whether Webster was authorized by the defendant or by some one duly authorized to assume and give directions in connection with the work. There was a verdict for plaintiff, a motion for new trial was filed and overruled, and defendant has appealed.

Opinion.

Appellant claims that there was no direct evidence of any active negligence or negligent omission or negligent directions upon the part of appellant, and that there was no evidence of any negligent directions upon the part of Webster, and that there was no evidence that Webster was authorized to give any such directions, and therefore the demurrer to the evidence should have been given. We do not pass upon these questions because the offered demurrer to the evidence was general. No withdrawal instructions were asked, and the defendant joined with the plaintiff in submitting the questions of negligence and the authority of Webster to the jury. It is firmly settled in this state that if a petition alleges several grounds of negligence as the cause of the injury for which plaintiff seeks to recover damages, and at the close of the evidence defendant asks for an instruction in the nature of a general demurrer which is overruled, and thereafter the defendant asks no instruction withdrawing the several allegations of negligence from the consideration of the jury, but joins with the plaintiff in submitting one or more of the grounds of negligence to the jury for their determination, the defendant is estopped to claim, on new trial or appeal, that there was no evidence upon which the jury could have rightfully found for the plaintiff upon the issues so submitted. Torrance v. Pryor (Mo. Sup.) 210 S. W. 430; State ex rel. Railroad Co. v. Allen, 308 Mo. 487, 272 S. W. 925; Packer v. Chicago, M & St. P. Ry. Co. (Mo. App.) 265 S. W. 119, State v. Pigg (Mo. App.) 247 S. W. 257; Ruenzi v....