Stuart v. Standard Oil Co.

• Citation: 211 Mo. App. 345,244 S.W. 970
• Decision Date: 26 June 1922
• Docket Number: No. 14440.,14440.
• Parties: STUART v. STANDARD OIL CO. OF INDIANA et al.
• Court: Court of Appeal of Missouri (US)

244 S.W. 970

211 Mo. App. 345

STUART v. STANDARD OIL CO. OF INDIANA et al.

No. 14440.

Kansas City Court of Appeals. Missouri.

June 26, 1922.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by David C. Stuart against the Standard Oil Company of Indiana and Charles Hawkins. Judgment for plaintiff against the corporation defendant and in favor of defendant Hawkins, and the corporation defendant appeals. Affirmed.

Hogsett & Boyle, of Kansas City, for appellant.

Kelly, Buchholz, Kimbrell & O'Donnell. of Kansas City, for respondent.

ARNOLD, J.

This is a suit in damages for personal injuries. Plaintiff was employed by defendant corporation in a gang of men under the immediate direction of a "straw boss" or foreman, defendant Hawkins, at the plant of defendant corporation at Sugar Creek, Jackson County, Mo. A few minutes before the injury this gang had bean engaged in removing some wooden trestles from a condenser box made of iron or steel, rectangular in shape, and being, according to the testimony of plaintiff, about 60 feet long, 30 feet wide, and 18 feet deep. Some of the gang, including plaintiff were down in the box, passing the trestles up to the other men on top. After the trestles were removed, plaintiff says he asked how the men were going to get out, and that Hawkins, the foreman, replied they should "shimmer out," by which he meant they should climb up the I-beams on the inside of the condenser box by holding to the outer flange of the I-beams with their hands and placing their feet or the rivet heads that protrude slightly on the inner flange thereof.

The testimony tends to show that this was the manner in which the employés ordinarily climbed out of said box. Plaintiff testified that he and others of the gang asked Hawkins for a ladder, and that, although there was a ladder right at hand, leaning against and help plaintiff, but this offer was refused, to give it to them, but told them to "shimmer out," and went his way to the next place where the gang was to work. This statement was denied by Hawkins, who was plaintiff's witness.

Plaintiff testified that after the foreman bad refused to furnish a ladder and had left, the five or six men waited down in the box for a few minutes, and then one by one they climbed up the I-beam and got out, leaving plaintiff down in the box alone. Further, he stated that a man named Cole, who had gotten out, offered to come back and help plaintiff, but this offer was refused, plaintiff saying he wanted a ladder, whereupon Cole promised to get one for him and then went away. Cole testified to the same effect but stated there was no ladder at hand. By this time Hawkins and the members of the gang except plaintiff and Cole had gone to the next job, about 300 feet away.

The testimony tends to show that Cole left the box where plaintiff was, and told the foreman that plaintiff wanted a ladder to get out of the box; that the foreman then sent two men named Shannon and Nevins to get a ladder for the purpose; that Shannon and Nevins procured a ladder, and proceeded to lower it into the box, when they found that plaintiff had attempted to climb the I-beam as the others had done, but had fallen, sustaining the Injuries of which he now complains. It appears that plaintiff waited 30 to 45 minutes for the ladder to be furnished before he attempted to climb out by means of the I-beam; that he tried three times to get out, failing each time, and at the fourth attempt he fell and was injured. The injury occurred on March 1, 1920.

The negligence charge of the petition is:

"That said Charles Hawkins, acting as the foreman and vice principal of the defendant corporation, as aforesaid, and in the discharge of his duties as foreman and vice principal of said defendant corporation, carelessly and negligently failed mad refused to furnish this plaintiff with a ladder with which to get out of said condenser box, and carelessly and negligently ordered this plaintiff and the other laborers in said condenser box to `shimmer out' of said condenser box. * * * Said method by which this plaintiff was ordered to get out of said box was dangerous and unsafe, and the order given to this plaintiff was a negligent one, and was one likely to result in this plaintiff falling from the side of said box aforesaid to the floor of said box, and thus receive great bodily harm; * * * that he remained in said box for a period of about three-fourths of an hour, waiting for defendant and defendant's said foreman and vice principal to furnish him some safe means with which to get out of said box, and that the defendants carelessly and negligently failed and neglected so to do," etc.

The petition is directed against both the foreman Hawkins and the Standard Oil Company of Indiana, as defendants. The amended answer of both defendants is a general denial and plea of contributory negligence. There was no reply. The cause was tried to a jury. At the close of plaintiff's evidence peremptory instructions in the nature of demurrers were offered by both defendants and were refused. Verdict was for plaintiff against defendant corporation in the sum of $2,500 and in favor of defendant Hawkins. Judgment was entered accordingly. Motions for new trial and in arrest were filed on behalf of defendant company and overruled. The case was then appealed to this court.

The first assignment of error charges error in the refusal of the court to sustain the demurrer offered by defendant company for the reasons (a) that there was no negligence shown on the part of said defendant, and (b) if it was dangerous for plaintiff to climb the I-beam, no one knew that fact better than plaintiff himself, and he was guilty of contributory negligence as a matter of law in failing to wait for the ladder which Cole had gone to procure for him. Hatten v. Railroad (Mo. App.) 233 S. W. 281.

The case was submitted on the theory that defendant corporation was negligent for failure to perform its duty to plaintiff. The testimony shows that. Hawkins was not a general foreman, but a, working foreman under Linn. The latter testified that sometimes he provided ladders for the use of men in getting out of the condenser boxes, but the testimony of Hawkins on this point was to the effect that Linn did not provide a ladder on this occasion. Hawkins...