Mueller v. Ralston Purina Co

Citation254 S.W. 720
Decision Date18 September 1923
Docket NumberNo. 17887.,17887.
PartiesMUELLER v. RALSTON PURINA CO.
CourtCourt of Appeal of Missouri (US)

Appeal from St. Louis Circuit Court; E. A. Hamilton, Judge.

"Not to be officially published."

Action by Michael Mueller against the Ralston Purina Company. Judgment for plaintiff, and defendant appeals. Affirmed.

A. & J. F. Lee, James A. Waechter and Joseph Renard, all of St. Louis, for appellant.

John Neu, Jr., and Earl M. Pirkey, both of St. Louis, for respondent.

SUTTON, C.

In this action the respondent sues to recover damages for personal injuries received while in the employ of appellant at its plant in the city of St. Louis.

The appellant was engaged in the manufacture of chicken feed at its plant. The respondent was moving chicken feed from the building in which it was manufactured over a platform to a wagon outside the building. In doing this work the respondent used a hand truck. The chicken feed was loaded onto the hand truck in large sacks, and was moved from the building across the platform, and thence over a running board which extended from the platform to the wagon. The running board inclined slightly upward. The truck used had two wheels and two handles, and was operated by respondent by taking hold of the handles of the truck and shoving the truck in front of him over the platform and running board. At the time of the injury of which respondent complains, the truck was loaded with five sacks of chicken feed weighing 100 to 200 pounds each. The platform over which respondent was required to move the chicken feed was not protected from the elements. The day before the respondent's injury, it had been cold and ice had accumulated on the platform; on the day that respondent was injured it had been snowing and raining. Flour dust and grain dust which sifted from the sacks of grain, chicken feed, and other grain products, while being moved by appellant's employees over the platform and running board, had been permitted to accumulate upon the platform and running board. This flour dust and grain dust became wet by the rain and melting snow and ice, and formed a sort of paste which rendered the platform and running board slippery. While the respondent was pushing the hand truck loaded with five sacks of chicken feed over the platform, and when he had arrived at the running board, and was in the act of pushing the truck onto and up the inclining running board toward the wagon, his feet slipped from under him by reason of the slippery condition of the platform, and he fell on his back and shoulder, and the handle of the truck fell on his right arm at the elbow, whereby he received the injuries for which he sues. The accident occurred some time in the afternoon. The slippery condition of the platform had existed most all the day. Several of the employees had slipped and received falls on the platform during the day, but none of them were injured. Respondent called the attention of the appellant's foreman in charge of the work to the slippery condition of the platform, and requested that something be done to remedy such slippery condition. The foreman made no response to the request. Respondent was a courteous and obedient servant and made no further protest, and continued in the performance of his duties as before. Several hours after this request was made the respondent received his injuries. Appellant's foreman in charge of the work was in and about the place throughout the day, and must have known of the slippery condition of the platform long before the accident occurred. Both the general foreman and the immediate foreman in charge of the work testified that they recognized the danger arising from allowing the dust to accumulate on the platform and become wet from rain or melting snow or ice, and that they knew that the flour dust, if it became wet, would be slippery and dangerous so that the workmen would be likely to fall and be seriously hurt, and that recognizing this danger it was the custom to clean the dust off the platform at intervals so that it would not become slippery and dangerous; that generally the platform was cleaned right after the noon hour before the loading commenced. The evidence abundantly showed, however, that on the day the respondent was injured the platform was not cleaned until after his injury. The respondent testified that while he knew the platform was slippery, he believed that by being careful he could safely continue in the performance of his work. The trial resulted in a verdict and judgment for respondent for the sum of $5,750.

The appellant insists here that its demurrer to the evidence should have been sustained on the ground that respondent assumed the risk of any injury to himself in the employment in which he was engaged and on the further ground that respondent is chargeable with contributory negligence as a matter of law.

It is the nondelegable duty of the master to exercise ordinary care to provide his servant a reasonably safe place and reasonably safe appliances for his work, and failure to do so is actionable negligence. George v. Railroad, 225 Mo. loc. cit. 400, 25 S. W. 196; Jones v. Queen City Woodworks & Lumber Co. (Mo. App.) 239 S. W. loc. cit. 534; Williams v. Pryor, 272 Mo. loc. cit. 320, 200 S. W. 53.

The servant never assumes a risk arising from the negligence of the master. This doctrine is firmly established in the jurisprudence of this state, and is founded upon the soundest sort of judicial reasoning. George v. Railroad, 225 Mo. loc. cit. 406, 125 S. W. 196; Williams v. Pryor, 272 Mo. loc. cit. 621, 200 S. W. 53; Wendt v. Zittlosen Manufacturing Company (Mo. App.) 229 S. W. loc. cit. 1109; Anderson v. Lusk (Mo. App.) 202 S. W. loc. cit. 307.

That the evidence tended to show negligence on the part of the appellant in failing to provide respondent a reasonably safe place for the performance of his work and that respondent's injury directly resulted from such negligence, there can be no doubt, and it is but a corollary to this that respondent is not barred of recovery for his injuries as a matter of law on the ground of assumption of...

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