Mullery v. Missouri & Kansas Telephone Co.
| Decision Date | 18 May 1914 |
| Citation | 168 S.W. 213,180 Mo.App. 128 |
| Parties | ALICE C. MULLERY, Respondent, v. MISSOURI & KANSAS TELEPHONE CO., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Charles H. Mayer, Judge.
Reversed and remanded.
C. C Crow and D. E. Palmer for appellant.
The court clearly erred in refusing to peremptorily instruct the jury to find for defendant. Long v. Moon, 107 Mo 334; Kipp v. Oyster, 133 Mo.App. 711; Fink v Mo. Furance Co., 82 Mo. 276; Gayle v. Mo. Car & Foundry Co., 177 Mo. 427. The rule res ipsa loquitur does not apply because the plaintiff pleaded specific acts of negligence. Gibler v. Railroad, 148 Mo. 475; Black v. Railroad, 217 Mo. 672; McGrath v. Transit Co., 197 Mo. 97; Hayne v. Packing Co., 126 Mo.App. 93; Hamilton v. Railroad, 123 Mo.App. 619.
Mytton & Parkinson for respondent.
(1) It is the duty of a master to furnish his servant a reasonably safe place in which to work, and this duty cannot be delegated. Morton v. Dry Goods Co., 126 Mo.App. 377; Herdler v. Stove & Range Co., 136 Mo. 16; Burnes v. Railroad, 129 Mo. 56; Sackewitz v. Biscuit Co., 78 Mo.App. 144. (2) The duty of the master to furnish a reasonably safe place of work embraced the rest room where plaintiff was required to be when she was injured. Jackson v. Butler, 249 Mo. 342; Strobel v. Mfg. Co., 148 Mo.App. 22.
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 employees; 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 five to eight feet of the east wall. The balcony was about six feet from the floor and about nine 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 employees 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 five or six feet in height, eighteen inches in width and about the same in depth. They weighed from 300 to 500 pounds apiece. They stood up about five 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 six 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 employees 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 were caused in some way to move forward on the balcony floor so as to bring the top of the locker below the beam. The evidence was undisputed that they had stood firmly and securely in place ever since they had been put there, without slipping or instability of any kind, and had been in constant use for over a year. There is nothing in the entire record tending to show, or from which an inference can be drawn, that they would ever have fallen had they been left in the condition in which they were placed and had no attempt to remove them been made. After the locker fell, there were marks on the balcony floor showing where the front legs slipped forward to the north far enough to allow the top to come below the beam and fall outward. There is no evidence in the record showing affirmatively what caused the front legs to thus move forward. Williams, one of the two men on the balcony at the time, says nothing was done by them to cause them to so move. But he did not remove the door from the locker. He was carrying clothes to the west end of the balcony and had his back turned to the locker when it fell, and he turned around startled by the crash of the fall. Womach who was taking the doors off the locker at the time it fell, was asked if he in any way moved the locker so as to cause it to fall, and made this answer "Not that I know of; I was taking those doors off."
So that there is no evidence in the record expressly or affirmatively showing that the specified negligent construction and maintenance of the lockers were the proximate causes of the fall, nor is there express or positive evidence that its fall was not caused by the...
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