Morgeneier v. Grafeman Dairy Co.

• Decision Date: 06 April 1920
• Docket Number: No. 15852.,15852.
• Citation: 220 S.W. 1009
• Parties: MORGENEIER v. GRAFEMAN DAIRY CO.
• Court: Missouri Court of Appeals

220 S.W. 1009

MORGENEIER v. GRAFEMAN DAIRY CO.

No. 15852.

St. Louis Court of Appeals. Missouri.

Submitted March Term.

Opinion Filed April 6, 1920.

Appeal from St. Louis Circuit Court; Benj. J. Klene, Judge.

"Not to be officially published."

Action by Otto Morgeneier against the Grafeman Dairy Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

Brownrigg, Mason & Altman, of St. Louis, for appellant.

A. B. Lansing, of St. Louis, for respondent.

REYNOLDS, P. J.

The gist of the cause of action in this case is failure to provide a reasonably safe place to work.

It is charged that plaintiff's injuries were sustained while in the employ of defendant in removing from the basement room of defendant's premises ice cream containers kept and stored there, for the purpose of delivering them to drivers, who distributed the freezes to customers. It is averred that in the course of his employment it was necessary for plaintiff to enter the room in which these containers were kept, early in the day and before it was light; that the room was a large one, about 20 feet wide, 30 feet long and 8 feet high, the walls dark and dingy and the room not provided with sufficient light to enable persons entering it in the dark to see and distinguish objects lying on the floor; that before it was yet light plaintiff entered the room and while undertaking to remove the ice cream containers, stepped and slipped upon lumps of ice lying about the floor of the room, and which pieces of ice, on account of the insufficiently lighted condition of the room, he was unable to see, so that he fell upon the floor and received the injuries described. Judgment is demanded for $5,000 as compensation for the injuries.

The answer, after a general denial, was a plea of contributory negligence, specially alleging that plaintiff had worked there for a long time and knew all about the conditions. To this there was the customary reply.

On a trial before the court and a jury it developed that plaintiff had been working for defendant for quite a while and knew the premises and that it was not an unusual thing for loose ice to be lying around. Plaintiff testified that the room was of the dimensions stated in his petition, although this was denied by defendant's evidence, that tending to show it was much smaller. Plaintiff also testified that there was but one gas light in the room, placed on the wall about 7 feet above the floor, and that there were no windows in it which furnished light. Defendant's testimony was to the effect that light could also get into the room from the door and from windows of other rooms adjoining. This plaintiff denied.

The testimony was also to the effect that the fact of loose ice being on the floor had occurred so often as to imply knowledge of the condition to the defendant.

At the conclusion of plaintiff's evidence and of the case, defendant demurred. The demurrers were overruled and there was a verdict for plaintiff in the sum of $1,000. Defendants filed a motion for new trial, containing twelve grounds. The first ground was that the verdict and judgment—

"are against the evidence, against the weight of the evidence and against the law under the evidence."

The second ground was:

"The verdict and judgment are for the wrong party, being in favor of plaintiff and against the defendant, when they should have been in favor of the defendant and against the plaintiff."

Defendant also filed a motion in arrest, which was overruled. The motion for new trial was sustained by the trial court on the grounds, as stated in the memorandum which he filed, and which is in the record, as follows:

"I am persuaded that the plaintiff received his injuries while engaged in the performance of his ordinary duties, the dangers of which were obvious, and such as he must have comprehended and understood. That he understood the risks and voluntarily assented to and assumed them. There was nothing out of the ordinary in the manner of his injury. It was such as might happen at any time during the course of his employment. This appeared in plaintiff's case and would probably have justified the giving of the instruction requested by defendant at the close of plaintiff's case. Feeling as I do the motion for a new trial is sustained on the second ground thereof."

From this plaintiff has duly appealed.

Learned counsel for respondent argues the case entirely upon the theory that the real ground for sustaining the motion by the learned trial court was because the verdict was against the weight of the...