Natt v. Aiken

• Decision Date: 05 May 1919
• Docket Number: No. 12760.,12760.
• Citation: 212 S.W. 58
• Parties: NATT v. AIKEN et al.
• Court: Missouri Court of Appeals

212 S.W. 58

NATT v. AIKEN et al.

No. 12760.

Kansas City Court of Appeals. Missouri.

May 5, 1919.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Thomas P. Natt against Charles G. Aiken and Henry L. Thayer, copartners doing business as Aiken & Thayer. Judgment for plaintiff, and defendants appeal. Affirmed.

John J. Cosgrove, of Kansas City, for appellants.

Clif Langsdale, of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff, a laborer employed by defendants, who were building contractors, was engaged in piling sacks of cement in a temporary storage shed adjacent to the structure on which defendants were at work. While piling these sacks of cement, some of those piled fell upon and injured plaintiff, and this suit was brought, resulting in a verdict for $4,000, which the court, by an enforced remittitur, reduced to $2,500, and judgment was rendered for that sum. The defendants appealed.

The grounds of the suit are: (1) That the defendants negligently ordered the sacks to be piled about 12 to 15 feet high, knowing, or by ordinary care they would have known, that sacks piled to such a height would become unsteady and fall upon and injure one working thereabout; (2) that defendants negligently failed to brace and keep braced the floor of said shed, so as to keep it from sagging with the weight of the sacks placed in the shed under defendants' orders, and that the floor sagged and caused the sacks to fall.

It is contended that the demurrer to the evidence should have been sustained. We do not think so. The evidence offered in plaintiff's behalf is to the following effect: That the shed was about 24 feet long, 12 to 14 feet wide, with a slanting roof, which made the shed 14 feet high on one side and 10 or 12 feet high on the other. The floor was of one-inch planks, supported by joists 18 inches apart, which were about 10 inches or a foot above the ground on the north side, and somewhat closer to the ground on the south side.

Plaintiff and his fellow workmen were ordered to unload two carloads of cement in sacks of 100 pounds each (a carload being from 650 to 900 sacks), and place it in the shed, where there was already 250 or 300 sacks. The foreman directed the men, including plaintiff, to pile the sacks "right up to the roof," and in obedience to these orders they piled them from 20 to 24 sacks high, which was much higher than they were usually and regularly piled; the rule being not to make them more than 15 sacks high. The sacks were piled in rows, and the rows were built up so as to make one row a step up to the higher row next to it, so that, when the first row was completely built up, there were a number of rows parallel thereto, and so built up as to form steps up to the highest row. They had completely built up five rows in this way, and there were a number of unfinished rows of lesser and lesser heights, so as to form the steps as aforesaid, and the floor was covered with sacks. In building up the sixth row, plaintiff, after depositing his sack, turned to descend the steps formed by the other rows of sacks, when the completed rows fell upon and injured him.

The evidence is that the sacks were piled in the usual and proper manner, and that care was used to so lay the sacks as to "tie" them together, and to so distribute the weight in each sack as to preserve its level and equilibrium. Some weeks before, cement had been piled only 10 sacks high in the shed, and the weight thereof had caused the floor to sag about 6 inches. Thereupon the foreman had ordered two of the men to place some timbers and blocking underneath to prevent the floor from sagging further. This they did by reaching under as far as they could from one (the higher) side. They dared not get under the shed themselves, fearing lest the floor would settle upon and crush them. They could in no way raise the floor to its normal level with the weight of the cement on it, but could only prevent further sagging, at least to the extent they were able to reach with the bracing they used. Shortly before the piling of the cement on the occasion of the injury, this former cement which had caused the floor to sag had been taken out and used in the construction work, with the exception of the 250 or 300 sacks heretofore mentioned as being already in there. When the weight on the floor had been reduced to the 200 or 300 sacks, the floor returned to its level, and was, of course, in proper place when...