Stratton v. Nafziger Baking Co.

• Decision Date: 09 January 1922
• Docket Number: No. 14[83.,14[83.
• Parties: STRATTON v. NAFZIGER BAKING CO.
• Court: Missouri Court of Appeals

237 S.W. 538

STRATTON v. NAFZIGER BAKING CO.

No. 14[83.

Kansas City Court of Appeals. Missouri.

January 9, 1922.

Rehearing Denied January 30, 1922.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

"Not to be officially published."

Action by May Stratton against the Nafziger Baking Company. From judgment for plaintiff, defendant appeals. Affirmed.

Montgomery & Rucker, of Sedalia, and Chas. M. Bush, of Kansas City, for appellant.

R. A. Higdon and Wilkerson & Barnett, all of Sedalia, for respondent.

BLAND, J.

This is an action for the wrongful death of plaintiff's husband. There was a verdict and judgment in favor of plaintiff in the sum of $7,500, and defendant has appealed.

The facts show that defendant was engaged in operating a bakery in the city of Sedalia; that on the 23d day of August 1920, a "header" across the top of the doorway, which led into a loading dock at the bakery, had sagged down from four to six inches and had broken the plastering exposing the lath. The sag extended half the distance across the doorway which was twelve feet wide. Over the loading dock was a room wherein were stored pasteboard cartons weighing six or seven tons. Defendant's manager realized that the floor above was in imminent danger of falling and ordered all wagons out of the dock and put up a rope and a sign reading "Dangerous." The' day foreman called up one Salisbury, who was operating a planing mill in said city, told him of the dangerous condition, and urged him to send men to shore up the floor so that it would not fall. Salisbury demurred, but after much urging on the part of defendant's foreman consulted two of his workmen, one Raeber and the deceased, about going out to do the work for the defendant and decided to undertake the work.

Salisbury arrived at defendant's bakery about a quarter to 5 o'clock in the afternoon, and defendant's manager told him that he wanted the sag fixed temporarily until defendant could get the load off of it. They had some discussion as to the size of the timbers that were needed to do the shoring. Finally defendant's manager said:

"I will tell you what I wish you would do. I wish you would take care of it."

Salisbury then ordered over the phone some timber. He then went to his supper and later came back to defendant's place at about 7 p. m., when he had another talk with defendant's manager. The manager said:

"That is pretty dangerous. You stay here and be awful careful and do not let anybody get hurt. * * * If you will stay here and tell them what to do and not let anybody get hurt, I will get dinner and will be back."

The manager then departed. Raeber then came, and Salisbury took the danger sign down. Thinking that the deceased was not coming, Salisbury put on deceased's overalls, and then deceased came, and Salisbury took off the overalls and gave them to deceased, who put them on. At the time of deceased's arrival Raeber had started to saw the timbers. Raeber and Salisbury joked deceased about being late and deceased asked what was to be done, and Raeber said.:

"If you want to work this time of day, here is the saw."

Deceased then sawed a piece or two of lumber, after which Salisbury said to him:

"Come in here; I will show you what we are going to have to do. It is a dangerous son of a b____."

At the time Salisbury made this observation he and deceased were just stepping into the doorway. They stopped in the doorway, deceased being a half of a foot to a foot inside the building Raeber testified:

"I was at the north end of the door opening, and Mr. Stratton [deceased] about the center, and Mr. Salisbury about the south end on a line with the door jamb, and Mr. Salisbury started telling Don [deceased] what it was, and about that time we heard a snap, and he [Salisbury] says: `For Christ's sake, it's going! Jump!' And he started to leave, and I jumped."

The cartons struck Raeber and knocked him out of the door. Salisbury started to run out and the cartons pushed him. The girder across the doorway struck the deceased on the ankles and hip and inflicted injuries upon him from which he died.

Raeber testified that Salisbury did not say anything about the situation being dangerous except what we have already detailed, and that the remark about the dangerous situation was made when Salisbury "stepped into the doorway." It is apparent from the testimony that Salisbury continued talking from the time he made the remark about the dangerous situation, and that he was pointing to the ceiling and had just started to tell the deceased what had to be done when the ceiling cracked and fell. There is testimony that as little as four minutes elapsed from the time deceased first arrived upon the scene until the ceiling fell. During this time Salisbury took off deceased's overalls and the latter put them on, and deceased had sawed a piece of lumber and had walked into the doorway. So, from the testimony, it would seem that the warning and the falling of the ceiling must have occurred almost simultaneously.

Plaintiff's evidence tends to show that there was nothing on the outside of the building to indicate the danger, and that deceased knew nothing of the dangerous situation until the remark of Salisbury regarding the same. The manager had no conversation in reference to making the repairs with any one except Salisbury.

Defendant's testimony tends to show that plaintiff's husband knew before he left the planing mill that he was to assist in remedying a dangerous situation, and that Salisbury had told him that the room in which they were about to enter was dangerous at least three times before they entered it.

On the part of plaintiff the court instructed the jury as follows:

"I. The court instructs the jury that, if you believe from the greater weight of the evidence that on or about the 23d day of August, 1920, defendant maintained a manufacturing plant in Sedalia, Mo., and that in said manufacturing plant there was a dock which was loaded with several tons of material, and that the floor of said dock also constituted the ceiling of a room in said manufacturing plant, and if you believe from the evidence that said floor and ceiling were in a dangerous condition and were in imminent danger of falling, and if you believe from the evidence that defendant, by and through its agents, knew that said floor and ceiling was in imminent danger of falling, and if you believe from the evidence that defendant took steps to secure said floor and ceiling from falling and put one Joseph Salisbury in charge of the work of so securing said floor and ceiling, and if you further believe from the evidence that E. Don Stratton at that time was the husband of plaintiff and had been regularly supporting her, and was on said day employed by defendant to help do work upon securing said floor and ceiling from falling, and if you further believe from the evidence that the said Joseph Salisbury ordered the said II Don Stratton into the room under said floor and ceiling, and that said E. Don Stratton complied with said order, and if you further believe from the evidence that the defendant failed to give the said E. Don Stratton sufficient warning of the nature of the danger of said floor and ceiling in order that an ordinary person might be able to appreciate and understand the nature of the danger incident thereto, and if you further believe from the evidence that the nature of the danger was not apparent to the said E. Don Stratton, and if you further believe from the evidence that he did not know or understand the nature of the danger of such floor and ceiling, and that he would not have known nor understood the nature of such danger by the exercise of ordinary care, and if you further believe from the evidence that the said Joseph Salisbury, in ordering said E. Don Stratton into the room under said floor and ceiling (if you believe from the evidence he did so order him), failed to exercise that care which a reasonably prudent person would have exercised under like or similar circumstances, and if you further believe from the evidence that the said E. Don Stratton, in entering said room under said floor and ceiling, exercised the care which a reasonably prudent person would have exercised under like or similar circumstances, and if you further believe from the evidence that upon entering said room the said floor and ceiling fell, and that the falling of said floor and ceiling thereby caused injuries to the said E. Don Stratton from which he died on said 23d day of August, 1920, and if you further believe from the evidence that said injuries and death of the said E. Don Stratton were the direct result of the said Joseph Salisbury ordering the said E. Don Stratton to enter said room and were the direct result of the failure of defendant to warn the said E. Don Stratton of the danger incident to entering said room (if you believe from the evidence that the said Joseph Salisbury did so order, and that defendant did fail to so warn), then your verdict should be for plaintiff.

"II. The court instructs the jury that, if you believe from the evidence that E. Don Stratton, upon entering the room where he was injured, fully appreciated the danger of entering said room, then he assumed the risk of injury resulting from entering said room, and if he did assume such risk then plaintiff cannot recover. In this connection the court instructs the jury that, in order for you to find that the said E. Don Stratton assumed the risk of injury incident to entering such room, you must find and believe from the greater weight of the evidence that the said E. Don Stratton knew and also appreciated the danger to which he exposed himself when he entered said room.

"III. The court instructs the jury that, if you find and believe from the greater weight of the evidence that E. Don Stratton, in entering the room in which he was injured, failed to exercise the care which a reasonably prudent person would have...