Scheytt v. Gallatin Valley Milling Co.
| Decision Date | 16 April 1918 |
| Docket Number | 3893. |
| Citation | 172 P. 321,54 Mont. 565 |
| Parties | SCHEYTT v. GALLATIN VALLEY MILLING CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Gallatin County; Ben B. Law, Judge.
Action by Henry O. Scheytt against the Gallatin Valley Milling Company, a corporation. From judgment for plaintiff and order denying new trial, defendant appeals. Reversed, with directions.
Geo. Y Patten, of Bozeman, for appellant.
H. S Farris and C. E. Carlson, both of Bozeman, for respondent.
Action for damages for personal injuries sustained by plaintiff during the course of his employment by defendant as roustabout in one of its warehouses at Belgrade, in Gallatin county. The defendant owns and operates a flour mill at Belgrade. In connection with it, it owns warehouses used for the purpose of storing flour and other mill products. Plaintiff had been in the service of the defendant for three years and about eight months. During one year of this time he had occupied the position of foreman in charge of the roustabout crew consisting of from two to six men, but about a year before the time of the accident he had been superseded by Frank Lynn and thereafter served as a roustabout. While engaged in this capacity his duties required him to perform any labor necessary about the mill and warehouses, including the moving of sacks of flour from the mill to the warehouses and piling them thereon, and, when occasion demanded, taking the sacks from the piles and loading them in cars for shipment. The duties of the foreman were to supervise the roustabouts in the performance of their duties, including the handling and piling of flour in the warehouses and the inspection of the piles from time to time to see that in the process of settling they did not get out of plumb and become likely to fall, thus creating a source of danger to those who might be working in proximity to them or engaged in loading cars from them. The accident occurred on August 5, 1914. Lynn had been absent from July 20th in attending to other duties assigned him. He had returned about August 1st. During his absence the plaintiff had superintended the other roustabouts in the building of a pile of 98-pound sacks in one of the warehouses which adjoined the mill. It consisted of four or five tiers, each made up of two rows of sacks laid end to end, the joints being broken as in laying brick in a wall. The ends of them were tied or locked by sacks laid crosswise. The end of the tiers constituted the end, and the sides of the outer tiers the side, of the pile. It was 12 or 14 feet high, and extended up near the slant of the roof of the warehouse. Plaintiff had personally assisted in building this pile. Mr. Parkins, the secretary and head bookkeeper of the defendant, had charge of the business office, including general charge of the warehouses. On August 5th he delivered to plaintiff an order to clean a car on the warehouse track of the Milwaukee railroad and load it with flour, to be taken out about noon. Lynn, the foreman, was not then in the warehouse, but was nearby. Without notifying him of the receipt of the order or awaiting instructions from him, plaintiff proceeded, in company with Edgar Bertelson another roustabout, to execute the order. While Bertelson was bringing up a truck to receive a load of sacks, plaintiff climbed up the side of the pile to pass them down. He had climbed up to the top of the pile near the roof, when the sacks began to roll and fall. He attempted to catch hold of the rafters to allow the sacks to go under him but was not able to do so. He then jumped, and, being caught by the falling sacks, suffered a comminuted fracture of the femur of his left leg and a minor injury to the ankle.
The negligence alleged in the complaint is (1) that the defendant had permitted the tiers of sacks comprising the pile to be so negligently built that while the outside tier was apparently straight and safe, the tier immediately behind it was standing in an uneven, unsupported, crooked, leaning, and otherwise defective condition, so that it caused the first tier to fall upon the plaintiff as he attempted to climb the pile; and (2) that defendant had failed to inspect the tiers of sacks in the pile and had omitted to warn the plaintiff of its dangerous condition. The answer, admitting the occurrence of the accident and consequent injuries of the plaintiff, denies that defendant was guilty of negligence. It also alleges the usual defenses of contributory negligence and assumption of risk. The trial resulted in a verdict and judgment for the plaintiff. The defendant has appealed from the judgment and an order denying its motion for a new trial.
Counsel challenges the integrity of the judgment on the ground that the evidence is insufficient to justify the verdict, and that the court therefore erred in denying defendant's motion for a new trial. Among others he makes the contention that there is no substantial evidence to establish the negligence alleged in respect to the condition of the pile of sacks. After a careful study of the record we have concluded that this contention must be sustained.
The plaintiff was himself the only witness who testified in his behalf as to the circumstances of the accident; and as his testimony was not aided in any way by that of any of defendant's witnesses, we must look to it alone to find support for the charge of negligence. As presented in the transcript, his testimony is not clear. The following brief synopsis of it, added to the foregoing statement, with the excerpts quoted below, includes all to be found therein on the subject. He stated: That the pile had been standing for about two weeks; that when he went to it he climbed up the middle of the side; that he went up until, he judges, his waistline was about even with the top; that he then saw that it was moving; and that he saw the first tier moving toward him, and a part of the second. We quote:
Again:
To continue reading
Request your trial