Sexton v. Garrison
| Decision Date | 03 May 1927 |
| Docket Number | No. 19711.,19711. |
| Parties | SEXTON v. GARRISON et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; William H. Killoren, Judge.
"Not to be officially published."
Action by Louis G. Sexton against Flint Garrison and others, doing business as the St. Louis Style Show Committee. Judgment for plaintiff, and defendants appeal. Affirmed.
W. E. Moser, of St. Louis, for appellants.
Wilbur C. Schwartz and N. Murry Edwards, both of St. Louis, for respondent.
This is an action for damages for personal injuires sustained by plaintiff while in the employ of the defendants, who were doing business under the name of the St. Louis Style Show Committee. Plaintiff recovered a verdict and judgment in the sum of $1,300. Defendants appeal.
The petition, as amended, charges negligence against the defendants in requiring plaintiff while in the performance of his duties as a stage electrician to use a perpendicular ladder which was dangerously and negligently constructed, in that the "battings" were so large plaintiff could not hold same; that the ladder at the time of the accident was wet and slick and had no handle or fastening to which plaintiff could hold; and that the ladder was so constructed as to be so far from the lights that plaintiff in using same was compelled to assume an unsafe and dangerous position while performing his work. It is further alleged that defendants failed to furnish sufficient light required to do the work, and negligently caused plaintiff to work hurriedly with the heavy burden in his arms while working on the ladder. The answer is a general denial, and pleaded contributory negligence and assumption of risk. The reply is a general denial.
The sole point made in the case is that plaintiff's own testimony disclosed that he was guilty of contributory negligence as a matter of law and that for that reason he cannot recover in this action. We, then, address ourselves to a review of the record evidence 'to see whether the proof in the propitious scale which favors the plaintiff with fair inferences is sufficient to pass this objection.
Plaintiff's evidence shows that the St. Louis Style Show was an annual affair sponsored by various parties in the city of St. Louis, and was conducted in the Municipal Theatre in Forest Park. The exhibition was financed by voluntary contributions and admission fees collected from patrons. It was not a profit making institution. The injury occurred on August 25, 1923. Plaintiff was then the stage electrician and his immediate superior was one William Lee, who was head electrician. Plaintiff got his orders from the head electrician, and also from defendant Garrison. The show was run for two weeks, and the accident occurred on the last night of the show. The ladder from which plaintiff fell was perpendicular and, it appears, was stationary. The sides were made of 4×4's; the rungs, called "battings," were seven-eighths thick and 4 inches wide, nailed on the 4×4's, and were about 4 feet long. There was a perpendicular gas pipe a few feet north of the ladder, with arms for light colors. The arms were about 18 inches apart and extended towards the stage. There were two of these ladders, one on each side of the stage, and plaintiff's duties were to go up the ladder and change the colors in the different sceneries. He was required to carry several of these lights at a time and they weighed about 4 pounds each. When he ascended the ladder he had to reach out to the north and change the light colors as he went along. He would take out one light and replace it with another, and the light changes were made twice during the performances, and, of course, would be removed at the end of the show. The color standards on the west side of the stage were 4 feet from the ladder. It was close enough, plaintiff says, that he could hook his arm around the rungs of the ladder while he was making the change of lights. On the east side of the stage (the side where plaintiff was injured) the light standard was about 5 feet north of the bottom of the ladder and ran out so that at the top the ladder and the light standard were nearly 7 feet apart. Plaintiff first worked on the west side, but was transferred to the east side and worked there for the last 13 days of the show. He says he was requested by his foreman, Lee, to take the east side because Lee concluded that plaintiff had a longer reach than the other man and could reach the standard while working on that side. Plaintiff testified that, when he was working on the east side, Lee told him to take half of the light colors at a time, requiring him to go up and down the ladder to make the change, thus being required to change the lights twice during the show and to remove same at the end of the performance. He was then required to make at least 5 trips each time to change the colors.
It is plaintiff's testimony that the ladder usually became damp from dew at night, and on the night that he was injured he was directed to work fast and did not have much opportunity to observe whether the ladder was wet or not. When asked whether the rungs of the ladder were wetter the night of the accident than on other nights, he answered that he could not say, but that the ladder was wet. He was asked on cross-examination whether he had not noticed, that it was wet at the time he ascended the ladder to which he answered that he did not have much chance to notice it because he was required to work fast, and that he did not know just how wet the ladder was on that occasion. Finally, he said he saw that the ladder was wet, but did not think it was "very wet."
Counsel for defendants asked him directly whether he did not realize that "it was just a question of time in going up there and changing those things under the, conditions that you have described before you would actually fall off of there?" His answer was:
The next question and answer follow:
"
On cross-examination, plaintiff testified that his hand had slipped twice in the 13 days which he had worked, and according to computation he had made 60 trips on the ladder before he was injured.
As to the immediate circumstances surrounding the accident, plaintiff says that he was about 15 feet above the floor when he fell; that he was then making the second change during the last half of the show; that it was the last change he Was required to make before the end of the show. He said it was dark, all lights being off but the blue ones; that he started from the bottom, of course, and had ascended 15 feet, making the changes as he went up, and that the point where he had to reach was so far that he had to reach out to his fullest extent, leaving only his fingers around the batting, so far, in fact, that he could not put...
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