Shuck v. Security Realty Co.

• Citation: 201 S.W. 559
• Decision Date: 18 February 1918
• Docket Number: No. 12767.,12767.
• Parties: SHUCK v. SECURITY REALTY CO.
• Court: Missouri Court of Appeals

201 S.W. 559

SHUCK v. SECURITY REALTY CO.

No. 12767.

Kansas City Court of Appeals. Missouri.

February 18, 1918.

Appeal from Circuit Court, Jackson County; Wm. O. Thomas, Judge.

Action by E. D. Shuck against the Security Realty Company. Judgment for defendant after demurrer to the evidence was sustained, and plaintiff appeals. Affirmed.

Atwood, Wickersham, Hill & Popham, of Kansas City, for appellant. Lathrop, Morrow, Fox & Moore, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is for personal injury received by him by falling down a "well hole" around which a stairway to a building was constructed. The trial court sustained a demurrer to the evidence, and judgment was rendered for defendant.

The defendant, Security Realty Company, was the general contractor for the erection of a large building, and it sublet the entire work; different parts to different contractors. The Crosby Construction Company was one of these; having the entire concrete work, including sidewalk and curbing. Plaintiff worked for the latter company and Put in the stairway here involved, as the foreman for such company. It was a cement stairway. Plaintiff numberless times was up and down the "form steps" before the final structure was run, set, and finished, and so he was after it was completed. On completing the stairway he had the form work torn away, including a temporary railing on the side opposite the wall. The part of the stairway in controversy was located in a dark place, and plaintiff had provided his own lights. Ten or twelve days after he finished the contract for the Crosby Company and after he had left the building, a small portion of the curbing to the sidewalk had been knocked off, or had crumbled, and the Crosby Company was asked by the Williams Company, the owner, to fix it. That company requested plaintiff to do so. He went to the building with his bucket and trowel, but did not take any material, though he knew the Crosby Company under the contract were to furnish material. He found some cement and sand and then began to look for water. He asked some men who were laying floors and they informed him that the water "had been cut off." He then went to the rear of the building where he had formerly got water for his work:, but did not succeed in getting any, as the key to the faucet was not there. He then concluded to try in the basement, though he had never gotten any there when at work on the building and did not know whether he would find any. He went to the stairway that he had built. He testified that "it was pitch-dark in there;" that "it was pitch-black in there." He had used torches as lights when he worked there before, but had none at this time. He felt in his pocket for a match and found none, but, instead of turning back for a light, he went on towards the steps without even taking the precaution to follow the wall with his hand, and walked into the hole. At this point in his testimony, plaintiff was not as candid as he might have been. When being reminded on cross-examination that he might have followed the wall with his hand and gotten down the steps in safety, he said he did not know that he could; that he might have overbalanced and that he might have stumbled. But finally he admitted he could have gotten down by that course, and then stated that:

"It is just as natural to me to go to the handrail, and while feeling for the handrail to guard against falling down the stairs, I stepped off into the opening."

That is, he chose, in utter darkness, to risk...