Ray v. Marquette Cement Mfg. Co.

• Decision Date: 18 June 1925
• Docket Number: No. 19120.,19120.
• Parties: RAY v. MARQUETTE CEMENT MFG. CO.
• Court: Missouri Court of Appeals

273 S.W. 1078

RAY v. MARQUETTE CEMENT MFG. CO.

No. 19120.

St. Louis Court of Appeals. Missouri.

June 18, 1925.

Rehearing Denied July 7, 1925.

Appeal from Court of Common Pleas, Cape Girardeau County; John A. Snider, Judge.

"Not to be officially published."

Action by James G. Ray against the Marquette Cement Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Oliver & Oliver, of Cape Girardeau, for appellant.

John M. Atkinson and David W. Hill, both of St. Louis, for respondent.

DAUES, P. J.

This is an action for damages for personal injuries alleged to have been received by plaintiff while in the employ of the defendant. There was a verdict and judgment for plaintiff in the sum of $2,-500, from which defendant has appealed.

The petition alleges negligence of the defendant in a failure to exercise ordinary care to furnish plaintiff a reasonably safe place to work. The answer is a general denial, coupled with the pleas of contributory negligence and assumption of risk. The reply is a general denial.

Appellant's assignments of error, though stated in many ways, amount to a complaint against the court in overruling defendant's demurrer to the evidence at the close of the whole case, and further assigns as error the giving of plaintiff's instruction No. 1, and finally that the verdict is excessive.

We will state such facts as we think germane in passing on the demurrer to the evidence and the question of the excessiveness of the verdict. In scanning the record to determine whether plaintiff made a case, we, of course, must keep in mind the rule that plaintiff is entitled to a consideration of the most favorable evidence to support the verdict, and indeed every reasonable inference that may be drawn in plaintiff's favor from such evidence.

The defendant operates a cement plant in Cape Girardeau county, and plaintiff was in its employ. His duties were to use a compressed air driller in drilling holes in the rock preparatory to a blast. He had a working partner, together with several helpers. Plaintiff worked at night, beginning work at 7 p. m., and received his injury between 5 or 6 o'clock on the morning of February 1, 1924. It was still dark at that time, and plaintiff had been working in a pit some 40 feet deep, the shaft having been excavated for the use of a crusher to be installed by the defendant company. A hole approximately 18 feet across was dug through strata about 6 feet, then the pit was dug down through solid rock. The shaft or hole was built somewhat in the shape of a coal hod, having three perpendicular sides, with one sloping side for incline out to the surface. It seems that protection by a concrete wall was provided around the main body of the opening, but there was a gap of about 12 feet where the incline went down into the pit which was unsupported. Along the floor of this cut or incline there were narrow industrial tracks laid for hauling rocks out of the excavation. This was the condition for a period of about 6 weeks before the day of the injury. The rock was drilled and blasted and then taken out of the pit. At the opening of the pit, or the place where the incline went down in front of the pit, passing the back or high wall, there was a ledge cleared off of about 8 feet square, which was retained for a station for signalmen. Plaintiff testified that at the time he "was injured he was standing at another point near the track looking down into the hole to give a signal, which he had been requested to give by a call from the bottom of the pit. He was told to give the signal by one Chas. Fulbright, who was a foreman, though generally over the negro laborers in the pit, and that as plaintiff was giving the signal the dirt wall of the pit gave away and threw plaintiff some 19 or 20 feet into the shaft. Plaintiff testified that both the general foreman, Wm. Corbis, and the foreman, Chas. Fulbright, directed him in his work. Plaintiff says that he was at the only place practicable at that time from which he could give the signal which he was ordered to give, and that he gave the signal from the place where the regular signalmen would sometimes stand in giving such signals. Plaintiff said that he had theretofore given signals, but not from the spot at the top of the pit where he stood when he was injured. On this occasion the regular signalman was down in the pit. Plaintiff's duties were to do whatever was required to be done by order of the foreman. It appears in evidence that this steep earth bank had been there for a considerable length of time, and that there was nothing by way of support to keep the earth from caving in at this point. Plaintiff further testified that the clay bank was not so situated that same could not have been shored or supported.

Plaintiff produced Chas. W. Fulbright, defendant's foreman at the time of the injury, and who was still so engaged at the time of the trial, who testified that plaintiff was engaged there in about the manner described by him, that the regular signalman was absent, and that he was the only foreman around at the time, and that he told plaintiff to give the signal to hoist the pump, and that, when he "hollered" for plaintiff to do so, plaintiff gave the signal in the regular way. He said that plaintiff stood on the left-hand side of the track when he gave the signal, and that, as plaintiff stood at the point where it was practicable for him to give the signal —that is, at the place where he could see the hoist—the earth caved in and precipitated plaintiff into the pit, injuring him.

Defendant's foreman further testified that the clay bank at the edge of the shaft was not shored up for a distance of 10 feet or more. This witness further testified that at the time of the injury the earth had been frozen and had begun to thaw again, and it was during this thawing process that the earth gave way. Witness said that other places around the shaft had been shored.

Dr. Paul R. Williams testified that he examined the plaintiff at the hospital immediately after the injury, and treated him at home for a period of two weeks or more; that he found a slight fracture in the lower end of the thigh bone, but that he did not believe that same would produce permanent disability. Another physician who examined plaintiff within a few weeks before the trial, in company with several other physicians, testified that they found the injured knee enlarged and the membrane in the joint thickened; that the enlargement of the knee joint was somewhat impaired, causing plaintiff to slightly limp. When asked whether the limping condition was permanent, the physician answered that he did not know, but that he saw no...