Ricketts v. Kansas City Stock Yards Co. of Maine

• Decision Date: 11 September 1972
• Docket Number: No. 55726,55726
• Citation: 484 S.W.2d 216
• Parties: Harold RICKETTS, Respondent, v. KANSAS CITY STOCK YARDS COMPANY OF MAINE, Appellant.
• Court: Missouri Supreme Court

Page 216

484 S.W.2d 216

Harold RICKETTS, Respondent, v. KANSAS CITY STOCK YARDS COMPANY OF MAINE, Appellant.

No. 55726.

Supreme Court of Missouri, En Banc.

Sept. 11, 1972.

Melvin L. Kodas, James L. Crabtree, Kansas City, for respondent.

Leonard A. O'Neal, Kansas City, for appellant; Brenner, Lockwood & O'Neal, Kansas City, of counsel.

LAURANCE M. HYDE, Special Commissioner.

Action for damages for personal injuries. Plaintiff had verdict and judgment for $125,000.00 from which defendant has appealed. We reverse and remand.

Plaintiff's injury was sustained in Kansas and the Kansas Workmen's Compensation Law is not applicable to defendant. Defendant had rejected the Missouri Workmen's Compensation Act which would have been applicable because plaintiff was hired in Missouri. Thus the general law of Kansas is applicable to determine liability.

Plaintiff was injured by the fall of a concrete gutter May 28, 1964 while working with a crew taking down this concrete gutter from the fourth floor of a concrete hog house built in 1918. There were 17 units, each being a separate house, and each had four floors, not enclosed, with gutters on each. The gutter being taken down, and some others, were leaking and beyond repair. The gutters were made of concrete with steel reinforcing rods in them. Plaintiff was the newest member of the crew of four men, having worked only on the removal of one gutter previously. The gutter was L shaped, the bottom extended out eight inches, the inside wall being the concrete beam at the south edge of the fourth floor, the outer wall extending upward about three feet. The gutter was open at the top and was about 100 feet in length. The method use for removal was to build a scaffold with a walkway about three feet below the bottom of the gutter, so that the bottom of the gutter was about at the hips of a workman and the top of the gutter was near the top of his head. The walkway of the workmen's scaffold was composed of three 2 by 10 inch boards and one 2 by 8 inch board. The total width to the railing at the back being 44 to 46 inches, it extended about 38 inches beyond the overhang of the gutter.

The gutter was removed by chipping off small pieces with pneumatic chipping hammers, estimated as weighing 16 to 20 pounds. There were four men in the chipping crew. One man would work as a chipper and one as a clean-up man from each end of the gutter, the chippers chipping from each end of the gutter toward the middle with clean-up men following with a scoop shovel to shovel the fallen chipped pieces off the scaffold. The men would take turns as chippers and clean-up men. The clean-up men would also clip off the reinforcing rods of the gutter, which were left when the concrete was chipped off, using bolt cutters but some of these rods were so deteriorated that they could be broken off with their hands. The foreman Tribble had charge of the work and gave instructions as to how it was to be done but had other duties and was not present most of the time. He designed and supervised the construction of the scaffold. By 2:00 P.M. on the day plaintiff was injured, which was his first day of work on that gutter, he had chipped off 30 to 35 feet of the west end of the gutter. Workman Kraushaar had chipped off 30 to 35 feet from the east end, leaving a middle section of 30 to 35 feet to be removed. At that time, plaintiff left the scaffold and climbed down to get a drink of water. He climbed back on a fence underneath the unchipped park of the gutter, three or four feet east of where he had left his chipping hammer; and while he was lying on the inside edge of the scaffold walkway with his left leg on it, reaching with his left hand toward a space between the scaffold walkway boards to pull himself up, a large part of the west part of the remaining gutter fell on his back and left foot. The gutter weighed 150 to 200 pounds per lineal foot. Plaintiff sustained serious injuries but because of the result we reach they will not be detailed.

Plaintiff alleged and had expert testimony to support his claims that the scaffold furnished was insufficient for plaintiff to move about and avoid the falling trough; that defendant should have known the gutter was likely to fall and failed to fasten it; and that defendant ordered the trough removed in an unreasonable and unsafe manner contrary to customs and accepted safety practices. It was also alleged that defendant failed to give plaintiff any warning of unreasonable dangers and hazards which existed in the directed manner of accomplishment of his task; that defendant failed to furnish reasonably sufficient and safe appliances and tools; and that defendant failed to provide reasonably sufficient supervisory personnel for the task assigned. Defendant had expert testimony to the contrary, saying it was not negligent in any to these respects. Plaintiff's main claim of negligence was having the men stand below the gutter while chipping it away.

Defendant contends it was entitled to a directed verdict claiming the evidence failed to establish any negligence on the part of defendant that proximately caused injury to plaintiff. Defendant says under the law of Kansas an employer owes no duty to furnish a safe place to work to employees engaged in construction, repair or demolition work or engaged to perform work to make a dangerous place safe, or a safe place dangerous or where in the progress of the work they are constantly changing and creating the place of work, citing McCoy v. Atchison, T. & S.F. Ry. Co., 129 Kan. 781, 284 P. 417; West v. Cudahy Packing Co., 86 Kan. 890, 122 P. 1024; Barlovich v. Union Pac. R. Co., 144 Kan. 186, 58 P.2d 1061; Uhlrig v. Shortt, 194 Kan. 68, 397 P.2d 321. In West the plaintiff's injury was caused by stumbling over a nail left protruding from a joist in removing old flooring. The court said the duty to provide a safe place of work does not extend to a place made dangerous by the very work being done, noting such work leads to dangers readily to be foreseen and appreciated by the workmen, as to which they assume the risk. 122 P., l.c. 1025.

In McCoy v. Atchison, T. & Santa Fe, a viaduct was being repaired and rebuilt. The plaintiff was injured by falling when he took hold of a brace that had been loosened while he went to get a post. It was held that plaintiff knew the braces were being tested and pried loose if so rusted as to be unsafe. The court said: 'The danger from the loosened brace was not a hidden one, but was an open and obvious one, which plaintiff could have seen at a glance.' 284 P., l.c. 419. The court said making changes was the work being done and plaintiff assumed the risk he encountered.

In Barlovich v. Union Pacific, the plaintiff repairing an engine in a roundhouse fell over a piece of firebrick in the dark while leaving the engine. Plaintiff knew that 12 or more other men were working on engines and it was held that he assumed the risk because he knew of constantly changing conditions. 58 P.2d, l.c. 1063. Contributory negligence in failing to use his flashlight was also suggested, l.c. 1065.

In Uhlrig v. Shortt, the plaintiff was working in a silo which was being filled. The distributor pipe clogged and ensilage showered making it difficult to see. In trying to get to the door to have the machinery stopped, plaintiff fell and his right eye struck a bolt protruding from the door. The court noted he had been doing the same kind of work with the same type of machinery for more than 40 years, knew where the door bolts were and that the distributor pipe had clogged on him on many previous occasions. The court held no jury issue was presented because the risk was obvious and could be appreciated and understood. 397 P.2d, l.c. 326.

Labatt's Master and Servant discussing construction and demolition work (§ 924) says: 'In all cases the master must exercise ordinary care to render the place of work reasonably safe for his servants. Where, however, the very progress of the work causes the conditions surrounding the place of work to change, such as in the construction or demolition of a building, or where the work itself consists of rendering a dangerous place safe, the exercise of such ordinary care on the part of the master may, and frequently does, fail to give to the place of work the same amount of safety that the same degree of care would give to a place of work the conditions surrounding which were permanent. The master's duty is not altered, but the results of the exercise of that duty may differ very materially. The mere fact that there are dangers connected with all work of the general character of that here discussed, which ordinary care on the part of the master cannot remove, does not excuse him from liability for injuries due solely to dangers which the exercise of ordinary care would have removed.' We do not find the law of Kansas different from this.

In Miller v. Foundation Co., 93 Kan. 38, 143 P. 493, the plaintiff was working at night on a platform used by defendant while engaged in driving piling for the foundation of a bridge. The plaintiff was giving signals with a lantern, after receiving signals from the foreman, for hammering piles for the bridge foundation. While performing this duty, the plaintiff was struck by the slack of the hammer line and knocked off the platform into the river. The defendant relied on the ruling in the West case, 122 P., l.c. 1025, that the master's duty to provide a safe place to work did not apply 'in case of repairs or improvements which, in their ordinary progress, lead to dangers readily to be foreseen and appreciated by the workmen.' The court said: 'That principle * * * has no application to the situation here. Plaintiff was sent to work on this platform, and his duties obliged him to remain there. * * * Whether reasonable diligence required the defendant to furnish light sufficient to enable plaintiff to avoid the danger, and whether it did not require defenda...