Reese v. Loose-Wiles Biscuit Co.

• Decision Date: 26 June 1920
• Docket Number: Mo. 13615.
• Parties: SEESE v. LOOSE-WILES BISCUIT CO.
• Court: Missouri Court of Appeals

224 S.W. 63

SEESE v. LOOSE-WILES BISCUIT CO.

Mo. 13615.

Kansas City Court of Appeals. Missouri.

June 26, 1920.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

"Not to be officially published."

Action by Alma Reese against the Loose-Wiles Biscuit Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Vinton Pike, of St. Joseph, and O. C. Mosman, of Kansas City, for appellant.

Gamble, Kennard & Trusty, of Kansas City, for respondent.

BLAND, J.

Plaintiff recovered a verdict and judgment in the sum of $5,000 for damages for personal injuries sustained by her on February 15, 1918, on account of the negligence of the defendant.

The evidence shows that defendant maintained in Kansas City, Mo., a large manufacturing plant, which was engaged, among other things, in the making of soda crackers. The fourth floor of the plant where the accident occurred was 150 feet long from east to west, 126 feet wide from north to south, and 13 feet 3 inches in height. In this room, where 300 girls worked, were several departments, known as the "cake packing department," "the cracker department," and the "labeling department." Plaintiff was employed in the labeling department, which was located in the north part of the room. Her duties were to place labels on cartons after they had been filled with crackers in the cracker department, which was in the southwest part of the room. The crackers were brought down from an upper floor by means of mechanical conveyors. There were seven of these conveyors on the south side of the room, running east and west, standing side by side and 15½ feet apart. These conveyors were 5 feet wide and about 20 feet long from north to south. They were numbered from west to east, the first one being No. 7, which was 3½ feet from the west wall. The crackers were brought down on the south side of the conveyor in trays on an endless chain, they were carried north on to a horizontal apparatus called the packing table where they were delivered, the conveyor, continuing back underneath the table and returning the empty trays to the upper floor. Forty feet south of these conveyors in the south wall of the room was a row of nine windows, the tops of which were 10 feet 10 inches from the floor. These commenced 5 feet east of the southwest corner of the room, and ran 66 feet east to an elevator. The tops of these windows were about 2½ feet below the ceiling. The south 30 feet of the 40-foot space between the conveyors and the south wall was used for storing packing boxes and other material, which were stacked against the windows as high as 8 feet, so that the windows extended only about 2 feet 10 inches above them. This left an aisle about 10 feet wide, running east and west between the conveyors and the boxes. The shutting out of the light from the windows by the stack of boxes and other materials darkened the floor of the aisles. A row of electric lights was hanging over the floor, one in front of each conveyor, and the rules required that these lights be kept burning at all times during the day. At the west end of this aisle was a door, which was a little to the southwest edge of the first or conveyor No. 7. This door opened into a stairway which led down to a room on the third floor, where defendant maintained a supply of aprons for the use of, the girls while working.

The 15½-foot space between the conveyors 7 and 8 formed a north and south aisle, which entered the one that ran east and west. These aisles were commonly used by girls going from the labeling room to defendant's apron department on the third floor. In the passage of the crackers to the fourth floor by means of the conveyors and in transferring them to the tables, broken crackers were liable to fall upon the floor in front of the conveyors and the boxes. There were employ& who were required to keep the floor clean of crackers and other debris, and as soon as a cracker fell it was supposed to be picked up immediately. It was a rule of defendant to clean up this passage way between the conveyors and the boxes every night after work. The broken crackers which did not become soiled were packed in boxes and sold to the trade as broken crackers, while those which had fallen on the floor were gathered up and sold for animal food. As an additional precaution, two pans were placed on the aisle floor against the south end of each conveyor to catch any pieces of crackers or cracker crumbs that might fall from the trays through the screen of the protector back of which the endless chain carrying the cracker trays operated. As the crackers came down the conveyors they were practically white; they were made of soda, flour, salt, and lard. If they were permitted to lie upon the floor, of course, they became dirty, and the evidence was they made the floor very slippery. The floor was made of hard maple and was smooth.

Work on the fourth floor started at 7:30 a. m. About 7:20 or 7:25 a. m. a fellow employé of plaintiff, a Miss Welsh, passed along the aisles and door mentioned, and went to the apron room on the third floor. This was before the machinery started up. In so doing she observed by the electric lights which were then burning that the aisle in front of conveyor 7 had not been cleaned up the night before, contrary to custom, and that in front of said conveyor a quantity of dirty, broken crackers had been left lying on the floor. Plaintiff's mother made her aprons, so that plaintiff seldom went to the apron room. Prior to the day in question she had been there only three or four times in the ten months that she had been in defendant's service. She had never seen crackers on the aisle before, but on each previous occasion when she passed over the aisle it was clean. At about 10:45 a. m. on the morning in question plaintiff's apron became soiled, and she started to go to the apron room for a clean one. She was accompanied by Miss Welsh. They walked between conveyors 7 and 8, then turned to the right around the corner of conveyor 7. When plaintiff had proceeded about 2 feet after she had turned, she stepped upon something with the ball of her foot, causing her to slip and fall, striking her right side on the arm of the protector of the conveyor and thence to the floor. She lay a minute or two before she was able with the aid of Miss Welsh to regain her feet. Although it was a cloudy day, the lights had been turned out, and plaintiff and her companion, before the former fell, could not see what was on the floor. When down on the floor she saw for the first time what had caused her to slip. She noticed that her foot while slipping had raked dirty crackers over the floor. These and other dirty crackers were strewn in front of conveyor 7, covering an area of about 3 feet square. There were seven or eight pieces of dirty crackers in this space. The aisles in front of the other conveyors were likewise strewn with dirty crackers. The floor was in the same condition that it was early in the morning when Miss Welsh saw it before the plant started up. There were no pans in front of the conveyor No. 7. Plaintiff testified that she was not looking directly at the floor as she walked along, but rather at the door. She assumed that the floor was in good condition and free of crackers and others débris.

Defendant asked an instruction in the nature of a demurrer to the evidence, and now insists that the facts show that defendant was guilty of no negligence, and that plaintiff's fall was a mere incident of her employment in the operation of defendant's business. We think that under the facts there is no question as to defendant's negligence. Van Verth v. Loose-Wiles Cracker & Candy Co., 155 Mo. App. 299, 136 S. W. 724; Johnson v. Bolt & Nut Co., 172 Mo. App. 214, 157 S. W. 665; Cross v. Chi., B. & Q. R. Co., 186 S. W. 1130.

There is no merit in the contention that plaintiff assumed the risk. It is now so well established as to be no longer an open question that if the master is negligent, the dangers and risks arising therefrom are not assumed by the servant. Williamson v. Union Elec. Light & Power Co. (Sup.) 219 S. W. 902; George v. Railroad, 225 Mo. 364, 125 S. W. 196; Fish v. Railroad, 263 Mo. 106,...