Mullery v. Missouri & Kansas Telephone Co.

• Decision Date: 18 May 1914
• Docket Number: No. 11056.,11056.
• Citation: 168 S.W. 213,180 Mo. App. 128
• Parties: MULLERY v. MISSOURI & KANSAS TELEPHONE CO.
• Court: Missouri Court of Appeals

168 S.W. 213

180 Mo. App. 128

MULLERY v. MISSOURI & KANSAS TELEPHONE CO.

No. 11056.

Kansas City Court of Appeals. Missouri.

May 18, 1914.

1. MASTER AND SERVANT (§ 89) — SAFE PLACE — REST ROOM.

An employé, being required to make use of rest periods and to do so in the rest room, is, when there at such a time, in the line of her duties; so that the employer must then maintain it in an ordinarily safe condition.

2. MASTER AND SERVANT (§ 285) — INJURY TO SERVANT — PROXIMATE CAUSE — EVIDENCE.

Evidence in a servant's action for injury from fall of a locker in the rest room held insufficient to sustain a finding that negligent construction was the proximate cause of the fall.

3. NEGLIGENCE (§ 119) — PLEADING AND PROOF.

If the evidence leaves it uncertain which of two acts of negligence caused a fall, and the petition specifies one only of them, there is a failure of proof.

4. NEGLIGENCE (§ 121) — RES IPSA LOQUITUR — PLEADING SPECIFIC NEGLIGENCE.

Where a specific act of negligence has been pleaded, the rule of ipsa loquitur does not apply.

5. MASTER AND SERVANT (§ 103) — INJURY TO SERVANT — SAFE PLACE — INDEPENDENT CONTRACTOR.

The master cannot relieve himself of liability for injury to a servant through a place for the servant not being maintained in a safe condition, because of the one employed by him to make changes in it being an independent contractor.

6. PLEADING (§ 248) — DEPARTURE.

A servant's action for injury being based on the master's failure to maintain a safe place for the servant, an amendment of the petition, merely charging the specification of the act by which defendant failed in the performance of that duty, does not constitute a departure.

Appeal from Circuit Court, Buchanan County; Chas. H. Mayer, Judge.

Action by Alice C. Mullery against the Missouri & Kansas Telephone Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

D. E. Palmer and Chas. C. Crow, both of Kansas City, for appellant. Mytton & Parkinson, of St. Joseph, for respondent.

TRIMBLE, J.

Plaintiff, in defendant's employ as a long-distance telephone operator, was injured by the fall of a locker in the rest room provided for defendant's employés; and she brings this suit for damages sustained thereby. She recovered judgment, and defendant has appealed.

The rest room in question, about 18 feet by 20 feet in size, was maintained by defendant in its telephone exchange building so that the lady telephone operators could have a place to rest and refresh themselves for a certain period in the forenoon and also for a like time in the afternoon of each day. The operators were required to make use of these rest periods, and to do so in the rest room. Call bells were established therein so that at the expiration of the rest period the operators would be notified of that fact and recalled to their seats at the telephone board. An operator, therefore, who, when the rest period arrived, had left the board and gone to the rest room to rest, as required, was still in the line of her duties, and was where she was required to be in the regular performance of her work. Hence the duty rested upon the defendant master to see that the rest room was maintained in an ordinarily safe condition. Jackson v. Butler, 249 Mo. 342, 155 S. W. 1071.

A balcony extended along the north side of this room from the west wall to within 5 to 8 feet of the east wall. The balcony was about 6 feet from the floor and about 9 feet wide. On this balcony were two rows of metal lockers in which the operators put their wraps. One row stood with their backs against the north wall of the room along the north side of the balcony. The other row stood along the south edge of the balcony with their backs to the room and their faces to the north leaving a passway between the two rows along the balcony. At the west end a flight of steps led to the floor of the balcony. The rest room was entered by a door east of the east end of the balcony, so that one in entering the room passed under the balcony and emerged from under it going in a southerly direction.

Prior to the day of the accident, defendant had entered into a written contract with one J. W. Lehr to make certain alterations in its building, including the removal of the balcony in the rest room. On the 10th day of January, 1912, two employés of Lehr were on the balcony preparing to remove the lockers from the balcony in order to take the balcony down. One of them, Williams, had taken an arm load of wraps out of the lockers, and had carried, or was engaged in carrying, said wraps to the west end of the balcony. The other man, Womach, was taking the doors off the east locker on the outer edge of said balcony. He had removed one and was either in the act of setting it down on the balcony or was taking off the other door, when the locker fell outward into the room to the floor, striking on one end and then toppling over against plaintiff, who had just come into the rest room to spend her rest period, causing an injury to her head, and thereby affecting her nervous system, subjecting her to nervous attacks, impairing her health, and rendering her incapable of working.

These lockers were of steel or metal, each about 5 or 6 feet in height, 18 inches in width and about the same in depth. They weighed from 300 to 500 pounds apiece. They stood up about 5 inches from the floor of the balcony on metal legs. Plaintiff's witnesses testified that the lockers standing on the outer edge of the balcony with their backs to the room were without any back legs, they having been cut off; that the lockers rested on their two front legs upon the balcony and extended up to the ceiling high enough for the back part of the top of the locker to rest against a beveled beam running east and west in the ceiling and extending about 6 inches down therefrom; that, though there were screw holes in the feet of these two front legs, there were no screws in them. Defendant's evidence was to the effect that the locker had two back legs, and that the front feet were screwed to the floor; and that the workmen engaged in removing the lockers had removed these screws.

Plaintiff's petition alleged facts which show that her cause of action is based on the master's failure to maintain said rest room in a reasonably safe condition for plaintiff's use as defendant's servant; and the particular act of negligence specified was the negligent construction or erection and maintenance of said locker upon said balcony without back legs thereunder, and resting at the top against the ceiling beam and at the bottom upon the two front legs, with no fastenings therein to prevent the said legs from slipping forward upon the balcony floor and thereby cause the top of the locker to come below the ceiling beam, and thus allow the locker to fall outward and down upon any employés who might be resting in the room at the time.

The lockers stood upright, and extended far enough above the beam to be held securely in place unless the legs...