Steinkamp v. F. B. Chamberlain Co.

• Decision Date: 03 May 1927
• Docket Number: No. 19398.,19398.
• Parties: STEINKAMP v. F. B. CHAMBERLAIN CO.
• Court: Missouri Court of Appeals

294 S.W. 762

STEINKAMP v. F. B. CHAMBERLAIN CO.

No. 19398.

St. Louis Court of Appeals, Missouri.

May 3, 1927.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

"Not to be officially published."

Action by Charles Steinkamp, Jr., by Barbara Steinkamp, his next friend, against F. B. Chamberlain Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Banister, Leonard, Sibley & McRoberts, of St. Louis, for appellant.

L. C. Turner and J. L. London, both of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries received by the plaintiff while in the employ of defendant at its manufacturing plant at 124 Vine street, in the city of St Louis. The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for $5,000, and the defendant appeals.

Defendant assigns error here upon the refusal of the court to give its instruction in the nature of a demurrer to the evidence. As ground for this assignment the defendant says there was no showing of any negligence on the part of the defendant contributing to plaintiff's injury.

The plaintiff received the injuries for which he sues about 5 o'clock in the afternoon of October 24, 1923. Defendant was engaged in the manufacture of food products, consisting chiefly of Jack Frost and Mamma baking powder and Big Wheat pancake flour. Defendant's plant consisted of a three-story building equipped with machinery. Plaintiff operated a baking powder packing machine on the second floor of the building. Albert Grawer was foreman of the second floor. The dimensions of this floor were about 100×150 feet. There were five or six hangers on the second floor used for the storage of stock. In addition to operating the baking powder machine, plaintiff did such other work as he was directed to do by the foreman. It was his duty to clean up around his machine and around the factory. His duties often required him to go up on the hangers. The hangers were constructed in substantially the same fashion. They were about 7 feet wide and 17 feet long. They were swung from the ceiling by iron rods or bars, two at each end and one at each side near the center. Slats about 1 inch thick and 3 to 4 inches wide were nailed on the ends of the hangers, extending from the ceiling to the floor of the hangers, for the purpose of preventing the stock which was piled on the hangers from falling off. The sides of the hangers were left open. There were no steps provided for use in getting up on and off of the hangers. One of these hangers was located at or near the center of the second floor. The floor of the hanger was a little more than 4 feet from the ceiling and about 7 feet from the floor of the building. On the occasion in question the foreman ordered plaintiff to go up on this hanger and clean up and straighten up the stock. Plaintiff used a stepladder in getting up on the hanger. The ladder was about 5 feet high. When it was in position at the hanger, the top of it was about 2½ feet below the floor of the hanger. It was the only ladder on the second floor. It was generally used by the workmen in getting up on the hangers on that floor. When they used the ladder in getting up on the hangers, they would frequently take hold of one of the slats and pull themselves up. Plaintiff likewise employed this method in getting up on the hangers. Sometimes the workmen would pull themselves up from the ladder by grasping the floor of the hanger, or one of the iron rods. When plaintiff had finished the work he was ordered to do on the hanger on the occasion in question, he found the ladder he had used in getting up on the hanger had been removed, and he attempted to get down from the hanger by taking hold of one of the slats and swinging himself down from the hanger to a barrel which sat on the floor beneath the hanger. While so engaged the slat parted from the hanger, and plaintiff was thrown to the floor of the building and injured. He fell on his right shoulder. He was later found by his fellow employees lying unconscious on the floor where he had fallen. The bone of the right arm was broken near the shoulder, and the collar bone was torn loose from the breastbone. A serious and permanent disability of the right arm and shoulder resulted. There was also a permanent disfigurement of the arm and collar bone. The evidence shows, however, that at the time of the trial plaintiff had procured employment which did not require any considerable exertion of the injured arm and shoulder, wherein he was earning more than he was earning at the time he was injured.

Plaintiff got up on the hanger on the east side near the north end, or at the northeast corner. There were five slats on the north end of the hanger. One of the iron rods used to support the hanger was between the first and second slats from the northeast corner of the hanger. The first slat was east of the iron rod and was located just at the northeast corner of the hanger. It was this slat that the plaintiff took hold of to let himself down from the hanger when he fell and was injured. The slat was fastened to the hanger by three small nails about two inches long. Two of these nails were driven at the top of the slat, one over the other, and the one nail was driven at the bottom. The nails were rusty and bent.

Plaintiff had previously on several occasions let himself down from the hangers in the same manner attempted on the occasion of his injury; that is, by grasping a slat and swinging himself from the hanger to a barrel placed beneath the hanger, and he had seen other workmen get down from the hangers in the same way. As said, when the workmen used the ladder in getting up on and off of the hangers, it was their practice to take hold of one of the slats, or floor of the hanger, or one of the iron rods, to pull themselves up from the ladder to the floor of the hanger or to let themselves down from the hanger to the ladder. There also appears to have been a practice amongst the workmen to use whatever was most convenient as aids in getting on and off the hangers. They sometimes used a truck, and sometimes a barrel. On such occasions, they used the slats or iron rods to pull themselves up and let themselves down. We think the evidence warrants the inference that the foreman knew of these practices and sanctioned them.

Plaintiff was 16 years old at the time of his injury, and had been working for the defendant about two or three months. He did not know of the unsafe condition of the slat, and was never warned of it. He was never instructed or warned not to get down from the hangers in the manner he attempted at the time he was injured. In fact, the foreman testified that he never instructed the plaintiff as to the manner or means he should employ in getting up on or in getting down from the hangers. We think that reasonable prudence would anticipate that a normal 16 year old boy, circumstanced as this boy was, with nothing to guide him save the promptings of his own judgment and the example of older persons in the same employment, would likely do precisely what this boy did; that is, that he would attempt to let himself down from the hanger by grasping hold of a slat, and that he would select the slat most convenient for that purpose. It was defendant's duty to exercise ordinary care to see that the means provided by it, or used by its employees with its knowledge, for getting up on and down from the bangers were...