Sabol v. St. Louis Cooperage Company

• Decision Date: 09 April 1926
• Parties: GEORGE SABOL v. ST. LOUIS COOPERAGE COMPANY, Appellant
• Court: Missouri Supreme Court

282 S.W. 425

313 Mo. 527

GEORGE SABOL v. ST. LOUIS COOPERAGE COMPANY, Appellant

Supreme Court of Missouri

April 9, 1926

Motion for Rehearing Overruled December 22, 1925.

Motion to Transfer to Court en Banc Overruled March 12, 1926.

Motion Filed in Court en Banc to Order Transfer of Cause from Division 1 to Court en Banc Overruled April 9, 1926.

Appeal from St. Louis City Circuit Court; Hon. Anthony F Ittner, Judge.

Reversed.

Watts & Gentry for appellant.

(1) The court erred in permitting respondent to state to the jury his conclusion as to what generally will or will not cause a pile of staves to fall, the question's not having contained any of the facts shown in this case, and the respondent not having shown himself qualified to express his opinion. Southern Iron & Equipment Co. v. Smith, 257 Mo. 226; Mahany v. Rys. Co., 228 S.W. 826. (2) The court erred in overruling appellant's demurrer to the evidence at the close of plaintiff's case: (a) Because plaintiff's petition wholly failed to state a cause of action. Zasemowich v. American Mfg. Co., 213 S.W 799. (b) Because the respondent wholly failed to show any negligence whatever on the part of appellant, or that if appellant was negligent, such negligence was the proximate cause of respondent's alleged injury. Bowman v. A. C. & F. Co., 226 Mo. 53; Sutherland v. Lumber Co., 149 Mo.App. 338; David v. Cider Co., 186 Mo.App. 13; Pruett v. Lumber Co., 188 Mo.App. 347. (c) Because the men who piled the staves which fell and injured respondent were his fellow-servants. Ryan v. Christian Board of Publication, 199 S.W. 1030; Van Bibber v Swift & Co., 286 Mo. 317; Prapuolenis v. Goebel Const. Co., 279 Mo. 358; Henson v. Stave Co., 151 Mo.App. 234. Therefore the burden of proving that his injury was not the result of such servants' negligence rested on respondent. McGowan v. Railroad, 61 Mo. 528; Blessing v. Ry. Co., 77 Mo. 410. The proof wholly fails to show that the pile was caused to fall by the negligence of anyone unless it was that of respondent's fellow-servants. (d) Because the verdict of the jury is based upon speculation and conjecture wholly. Even granting for the purposes of argument only that the record disclosed negligence on behalf of appellant, it further shows that respondent's alleged injury is as likely to have resulted from a cause for which appellant is not responsible as one for which it is responsible. Under these conditions there can be no recovery. Marlowe v. Kilgen, 252 S.W. 424; O'Dell v. National Lead Co., 253 S.W. 397; Weber v. Valier & Spies Milling Co., 242 S.W. 985; Kidd v. Coahuila Lead & Zinc Co., 204 S.W. 284; Bennett v. Equipment Co., 214 S.W. 244; Bowman v. A. C. & F. Co., 226 Mo. 53.

John New, Jr., and Earl M. Pirkey for respondent.

(1) The fall of a structure without any apparent cause is prima-facie evidence of negligence on the part of the person who provided it. American Shipbuilding Co. v. Lorenski-Lewandowski, 204 F. 39; Scheurer v. Rubber Co., 227 Mo. 366; Blanton v. Dold, 109 Mo. 74; Prapuolenis v. Goebel Const. Co., 279 Mo. 367. (2) The duty of furnishing a reasonably safe place and reasonably safe appliances is a non-delegable duty. Prapuolenis v. Goebel Const. Co., 279 Mo. 369; Lampe v. American Ry. Express Co., 266 S.W. 1009; Adair v. Terminal Ry. Co., 282 Mo. 133; Sneed v. Shapleigh Hardware Co., 242 S.W. 699; Coontz v. Mo. Pac. Ry. Co., 121 Mo. 659; White v. Montgomery Ward & Co., 191 Mo.App. 268. (3) The duty to warn is a non-delegable duty. Mertz v. Rope Co., 174 Mo.App. 108. (4) By giving an instruction submitting to the jury the question of whether defendant exercised ordinary care in the erection and maintenance of the pile of staves, defendant clearly implied that there was evidence on that subject and invited a verdict based on such issues. Davison v. Hines, 246 S.W. 303.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Action to recover damages for alleged personal injuries suffered by respondent on June 6, 1921, while in appellant's employment. Plaintiff is a Jugo-Slovack by nativity and had been employed by defendant for eighteen or nineteen years before his alleged injury. The principal allegations of the petition are: "That at the time plaintiff was injured as aforesaid and for some time next prior thereto the place where plaintiff was working was not reasonably safe for said work plaintiff was as aforesaid engaged in by reason of said pile of material being insecure so that there was probable danger of it falling on and injuring plaintiff, and defendant knew or by the exercise of ordinary care would have known that said pile was as aforesaid insecure and there was probable danger of it falling on and injuring plaintiff before plaintiff was injured as hereinafter mentioned, and for a long space of time next prior thereto and in time to have by the exercise of ordinary care remedied said condition before plaintiff was injured as hereinafter mentioned, but it negligently failed to do so, and after defendant knew or by the exercise of ordinary care would have known that said pile was as aforesaid insecure and there was probable danger of its falling on and injuring plaintiff defendant negligently required plaintiff to work and be at and about said pile, all without protection or notice of any kind to him. That on or about June 6, 1921, by reason of the negligence of defendant above mentioned, while plaintiff was engaged in the discharge of the duties of his said employment under defendant in culling barrel staves, and was at or near said pile, said pile, because as aforesaid it was insecure and there was probably danger of it falling, fell on plaintiff, whereby he was caused to fall and to strike and be struck by objects." The answer is a general denial. The facts, as shown by the evidence, are quite fairly set out in appellant's statement, which (except a few slight modifications by us made) is as follows:

"The facts disclose that respondent, aged fifty years, was employed by appellant in the work of culling staves; that is to say, his duty was to take the bundles of staves down from where they had been piled when unloaded from the car in which they were delivered to appellant's yard, loose the two wires around the bundles, inspect the staves and throw out the ones which were not suitable for appellant's use. Those discarded were known as culls, and the respondent was what is known among the trade as a stave-culler.

"Each bundle of staves contained twenty-one or twenty-two separate pieces, each thirty-three inches long and bound together by two wires, making a bundle about twelve inches in diameter. As the staves were unloaded from the railroad cars the bundles were stacked in a pile made by placing on the ground a row of bundles, on top of which another row of bundles was placed at right angles to the bottom row, the third row of bundles was placed on top of and at right angles to the second row, the fourth row the same as the second, and so on. Respondent guesses that the pile which fell on him was about twenty-two feet high. He took no part in the stacking of that particular pile, but he saw other men working under his foreman do that work two or three days prior to respondent's injury. At the time of his alleged injury the pile from which he was taking bundles of staves was about as high as he could reach when standing. However the pile which injured him was not the pile from which he was removing the bundles of staves, but was a pile standing immediately north of the one from which he was removing the bundles of staves. He says that the two piles of staves were not touching each other, but that there was a little space between them. Neither he nor anyone else, so far as he knows, had touched or pushed anything against the pile which fell on him. Immediately before it fell there was no noise or shock of any kind, nor was there any wind blowing against the pile. The first he knew of any danger was when he turned to take his bundle from the pile next to him and saw this other pile caving. He then dropped his bundle and ran, but before he could get far enough away a portion of the north pile fell and knocked him to the ground.

"At the time of his injury he was earning 42 cents an hour, but in view of the fact that he did not work steadily, his average weekly earnings were about $ 21 or $ 22.

"Respondent does not know how much of the pile of staves fell upon him. As above stated, the first intimation he had of any danger was when he suddenly saw the pile caving. He immediately started to run, was caught by the staves and knows nothing more about what portion of the pile fell. Prior to the time he discovered that the staves were caving, he had seen nothing unusual about the pile of staves which fell on him. Respondent testified that during the eighteen years he had worked as a staveculler he had helped to pile staves 'once in a while.'

"Over the objection of appellant, in answer to a question by his counsel as to whether or not he knew what would make a pile of staves fall, respondent stated that if the pile was straight and solid it would not fall; or if something was put on the side like a piece of rock or a piece of wood, the pile would not fall right away, but some days afterwards it would fall.

"Respondent testified that sometimes the wires holding the different bundles would break, permitting the staves to become loose that when a wire would break on a bundle up near the top of the pile, thereby permitting the staves to become loose, the staves would separate and some would fall off the pile; but if the break occurred on a bundle near the middle of the pile it would make the pile a little crooked, make it lean, and it would afterwards fall down; that where the wire breaks inside and one can't...