Pyle v. Kansas City Light, & Power Co.

• Decision Date: 03 July 1922
• Docket Number: No. 14019.,14019.
• Citation: 246 S.W. 979
• Parties: PYLE v. KANSAS CITY LIGHT & POWER CO.
• Court: Missouri Court of Appeals

246 S.W. 979

PYLE v. KANSAS CITY LIGHT & POWER CO.

No. 14019.

Kansas City Court of Appeals. Missouri.

July 3, 1922.

Rehearing Denied November 9, 1922.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by Samuel K. Pyle against the Kansas City Light & Power Company. From judgment for plaintiff defendant appeals. Affirmed.

John H. Lucas, William C. Lucas, and Ludwick Graves, all of Kansas City, for appellant.

W. W. McCanles, F. M. Kennard, S. L. Trusty, and E. H. Gamble, all of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff, an employee of the defendant, while engaged in his work as a "machinist's helper," was walking on a platform to a stairway leading therefrom to the floor below, when he stumbled over a piece of 4×4 timber, 2½ feet long, alleged to have been carelessly left lying there by defendant, and was thereby thrown headlong from the platform to the floor below, receiving severe and permanent injuries. This action for damages followed, resulting in a verdict in his favor for $15,000. Upon the filing of a remittitur of $10,000 reducing the amount to $5,000, the court overruled the motion for new trial and rendered judgment for the latter amount. Whereupon the defendant appealed.

The petition alleged that on the 2d of January, 1919, while plaintiff was in defendant's employ and in the scope thereof, was using the platform, walking thereon to the stairway leading to the floor below, his foot, by reason of defendant's negligence, came in contact with a timber lying on said platform at a place close to the stairway, whereby he was violently thrown down upon said platform and stairway and to the floor below; that defendant negligently allowed and permitted said timber to be on said platform at said place, "and thereby had said place in a dangerous and not reasonably safe condition for plaintiff's use in doing said work, when the defendant knew, or by the exercise of ordinary care could have known, of such facts in time to have prevented the injuries to the plaintiff"; that, although the stairway was for the use of plaintiff and other employees in the scope of their employment, and although said timber was on the platform near the stairway, the defendant negligently failed to furnish reasonably sufficient light, "by reason of which said place was dangerous and not reasonably safe for the use of the plaintiff, which the defendant knew, or by the exercise of ordinary care could have known, in time to have prevented the plaintiff's injury"; that, although said place was dark, and not sufficiently lighted, and although said timber was upon said platform near said stairway, "and by reason thereof said place was dangerous, and not reasonably safe for plaintiff's use," yet defendant negligently ordered plaintiff to go and be on said platform in the scope of his employment, when defendant knew, or by exercise of ordinary care could have known, of said condition and danger in time to have prevented the injury; that, by reason of the carelessness and negligence of defendant, said platform at said place was dark and insufficiently lighted, and by reason thereof was not reasonably safe for the use of the plaintiff, all of which facts defendant knew, or by the exercise of ordinary care could have known, in time to have prevented the plaintiff's injury; that, "by reason of the negligent acts and omissions herein set forth on the part of the defendant, which acts and omissions operated severally and concurrently, the plaintiff's foot came in contact with said timber, and he was violently thrown against the platform and stairway and the concrete floor, and injured as follows," etc.; that, the injuries are permanent, causing him to lose $800 in time and wages, to expend $500 for medical attention, and plaintiff to be damaged in the sum of $20,000, for which judgment was prayed.

The answer was: First, a general denial; second, it alleged that "if plaintiff sustained any injury at the time and place mentioned in the petition, the same was an assumed risk on his part in that he knew or might have known the conditions of the premises on entering the employment of defendant, or after entering the same before the accident and continuing therein with knowledge thereof"; third, that, "if plaintiff was injured at the time and place mentioned in his petition, the same was on account of his own negligence contributing thereto, in that he knew all the conditions of the premises at the time and before the accident complained of." The plaintiff's reply was a general denial.

We have carefully set out the plaintiff's pleading for the reason that appellant says in one place that the case is not bottomed upon any failure of the defendant to furnish a reasonably safe way or place of work. While this may appear somewhat as an inconspicuous remark in an attack upon plaintiff's main instruction, yet it goes to a matter of fundamental importance in the case, for it affects not only the correctness of the instruction complained of, but also the law applicable to plaintiff's case, and governing the question of his right to recover.

We think the petition as hereinabove set forth does bottom the case upon a failure to furnish a reasonably safe way and place to work. The petition alleged that, while plaintiff, in the scope of his employment, was walking on the platform to the stairway, he stumbled over a timber lying close to the stairway which had been negligently allowed and permitted by the defendant to lie there, whereby said place was in a dangerous and not reasonably safe condition for plaintiff's use not only as a way but also as a place in which to work. Whatever difference or distinction there may be between a servant's working place and a place which is a way to and from his work (and we do not mean to say that there is any in legal effect, or so far as liability is concerned), we are of the opinion that the petition in this case covers both, for—

It "is elementary that it is not only the duty of the master to provide a reasonably safe place for his servant to work, but a reasonably safe place where he properly resorts, on the premises, in connection with his employment." Schumacher v. Kansas City Breweries Co., 247 Mo. 141, 153, 152 S. W. 13, 16.

While the petition does not use the precise phrase or words "a reasonably safe way" on the master's premises to and from the place of work, it states facts which necessarily mean that very thing.

Although appellant contends that its demurrer to the evidence should have been sustained, yet it has condensed a bill of exceptions of 448 pages into a printed abstract of 140 pages by setting evidence out in narrative form, giving, as the court in Crohn v. Modern Woodmen, 145 Mo. Lipp, 158, loc. cit. 162, 129 S. W. 1069, loc. cit. 1070, says, "only the opinion of defendant's attorney as to what the evidence was," and giving the questions and answers only at certain places where objections to the evidence were overruled. From this respondent argues that the question of the sufficiency or the evidence to support a recovery is not before us for review. It is manifest from respondent's additional abstract that appellant's abstract does not contain all of the evidence; and respondent's additional abstract does not purport to contain all of the omitted. evidence, but only a part thereof, so that we are in no wise sure that we have before us the full substance of all the evidence, but only a synopsis of what appellant deems a part of the evidence to be. As respondent's abstract shows it contains only a small part of the evidence, and does not purport to contain all of the evidence, or even all of the evidence omitted from appellant's abstract, the case is, in that regard, somewhat different from Flatt v. Platt (Mo. Sup.) 236 S. W. 35, loc. cit. 39, for there the respondent filed "an additional abstract purporting to set forth the entire evidence." (Italic ours.) Respondent did not have to Supply all of the omitted evidence, since—

"It is not incumbent upon the one who has recovered the judgment, to maintain it. The burden of showing its invalidity is on the one attacking the judgment." Gooden v. Modern Woodmen, 104 Mo. App. 666, P73, 189 S. W. 304, 398; Brand v. Cannon, 118 Mo. 595, 597-598, 24 S. W. 434.

But since respondent in this case, has filed an abstract showing additional evidence which it is claimed will support or justify the judgment, may we not assume that the evidence supplied by respondent to justify the judgment constitutes, with that supplied by appellant, all of the evidence in the case which can be relied upon to support the judgment? Besides, the ground of the demurrer in the case at bar is not merely that there was no evidence to support the judgment, but that, on the evidence that is in the record, the judgment should have been for the defendant. This calls, therefore, for a statement of the facts as gleaned from the record made up of both abstracts, whether the sufficiency of the evidence to support any recovery is reviewable or not. It would seem, let us remark in passing, that, for the purpose of getting the case fairly and squarely before the reviewing court, counsel on both sides ought, in the preparation of a record, to agree, it possible, upon one that does contain the full substance of all the evidence. If this were done it would save the reviewing court an immense amount of time and labor otherwise made necessary, in studying two abstracts and "dovetailing" together, the evidence shown therein.

Plaintiff's fail occurred January 2, 1919, about a quarter to 5 o'clock in the afternoon. Defendant's power plant is on the west side of Baltimore avenue, in Kansas City, Mo., between 13th and 14th streets, and runs back west a block to Wyandotte street. On the first floor of the building is a hallway on the north side leading in from Baltimore avenue. South of the hallway is an open space looking down...