Vordermark v. Hill-Behan Lumber Co.

• Decision Date: 31 December 1928
• Docket Number: No. 27213.,27213.
• Citation: 12 S.W.2d 498
• Parties: VORDERMARK v. HILL-BEHAN LUMBER CO.
• Court: Missouri Supreme Court

12 S.W.2d 498

VORDERMARK v. HILL-BEHAN LUMBER CO.

No. 27213.

Supreme Court of Missouri, Division No. 1.

December 31, 1928.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Action by Jacob Vordermark against the Hill-Behan Lumber Company. From an order granting plaintiff's motion to set aside an involuntary nonsuit and reinstating and docketing the cause for trial, defendant appeals. Affirmed and remanded for trial.

A. E. L. Gardner, of St. Louis, for appellant.

Schneider, Cooney & Garesche, of St. Louis, for respondent.

SEDDON, C.

Action to recover damages for personal injuries alleged to have been suffered by plaintiff, because of the negligence of defendant, on the early morning of September 27, 1923, while plaintiff was in the employ of defendant as a night watchman in defendant's lumber yard in St. Louis county. The petition alleges:

"That on or about the night of the 27th day of September, 1923, while plaintiff was employed by and working under and in pursuance with the orders and instructions of the defendant, his work required him to walk on a certain platform on the defendant's premises at 6600 Page avenue, St. Louis County, Missouri, which platform was between four and five feet above the ground and immediately adjacent to a railroad track so that freight cars standing on said track could be unloaded on said platform. On the said platform the defendant had piled material so that a space of about eighteen inches between said material and the outer edge of the platform was all that remained for plaintiff to walk upon in doing his work for defendant, which work required plaintiff to walk on said part of said platform.

"Plaintiff states that during his absence from work the day before the defendant had carelessly and negligently permitted a quantity of broken pieces of mortar or plaster to be thrown upon and remain on the aforementioned part of the platform on which plaintiff was required to walk and on which plaintiff did walk and did knowingly step on the said plaster, which gave way, thereby causing him to slip and fall from the said platform and injure himself as hereinafter set out.

"Plaintiff states that his aforementioned injuries and consequent damages were and are directly due to and caused by the carelessness and negligence of the defendant, as above set out, in failing to exercise ordinary care to provide plaintiff with a reasonably safe place to work, and in failing to warn the plaintiff of the dangers thereof, which dangers the defendant company knew, or in the exercise of ordinary care could have known, existed in time to have, in the exercise of ordinary care, warned the plaintiff thereof, and thus have avoided the said injuries to the plaintiff, when the defendant knew, or in the exercise of ordinary care could have known, that plaintiff was unaware of the aforementioned dangers." Plaintiff seeks to recover the sum of $15,000 as compensatory damages.

The answer is a general denial, coupled with pleas of contributory negligence and assumption of the risk on the part of plaintiff. The reply is a general denial of the affirmative allegations of the answer.

At the close of plaintiff's evidence, the trial court gave to the jury a peremptory instruction to the effect that, under the pleadings and the evidence, plaintiff is not entitled to recover, and which instruction directed the jury to return a verdict for defendant. Thereupon plaintiff took an involuntary nonsuit with leave to file a motion to set the same aside. In due time, plaintiff filed a motion to set aside the involuntary nonsuit thus taken, which motion was sustained by the trial court, and the cause was reinstated by order of the trial court and docketed for trial on a day certain. Defendant was thereupon allowed an appeal to this court from the order of the trial court, sustaining plaintiff's motion to set aside the involuntary nonsuit, and reinstating the cause upon the docket for retrial. The order of the trial court was tantamount to an order granting a new trial, and the defendant has the statutory right to appeal therefrom. Section 1469, R. S. 1919; State ex rel. v. Railway Co., 149 Mo. 104, 109, 50 S. W. 278; McFarland v. O'Reilly, 308 Mo. 322, 327, 272 S. W. 692, and cases there cited.

The evidence of plaintiff tends to show that the defendant corporation is engaged in the lumber business at 6600 Page avenue, in St. Louis county. Its lumber yard comprises an area of about eight acres, upon which are constructed certain buildings and sheds in which lumber is stored. Adjacent to one of the lumber sheds is a spur railroad track, extending from the railroad main line into defendant's premises. The lumber shed in question is so constructed that the floor of the same, adjacent to the spur railroad track, serves as a loading platform, having an elevation of 4 or 5 feet above the level of the ground, and this platform extends along, and adjacent to, the railroad track for a distance of more than a city block. The lumber is unloaded from freight cars, standing upon the spur track, onto the platform aforesaid, and thence carried across the platform into the covered shed or building. The platform extends in a general north and south direction, and at the south end of such platform are a flight of steps leading from the platform to the ground.

At the time of his injury, plaintiff was 67 years of age. He had been continuously employed by defendant as a night watchman for about seven years, and his hours of service were from 6 o'clock in the evening until 7 o'clock in the morning. His duty was to go over defendant's premises several times during the night, and to "punch a clock" every hour at certain stations, or boxes, scattered over the premises, to denote his various visits to such stations. One of said stations was located in the shed or building above described, of which building the platform mentioned was a part. The injury to plaintiff occurred shortly after 5 o'clock in the morning, while plaintiff was making one of his usual rounds over defendant's premises. In walking along the platform aforesaid, in order to reach the steps leading to the ground from the south end thereof, plaintiff ordinarily encountered a pile, or piles, of lumber on the platform, which lumber piles extended to the roof or ceiling of the lumber shed, but there was usually and ordinarily an open space of 18 or 20 inches in width, extending the length of the platform and immediately adjacent to the outer edge of the platform, along which narrow space plaintiff was accustomed to walk in the performance of his nightly duties. On the night in question, he encountered a pile of plaster-board, or broken pieces of plaster, lying across and within said narrow space between the piles of lumber and the outer edge of the platform. Plaintiff stepped upon this pile of plaster-board, which gave away beneath his weight, and caused him to slip and fall over the outer edge of the platform to the ground, some 4 or 5 feet below, thereby receiving the injuries for which he seeks a recovery.

Plaintiff testified:

"When I was at the last box with my clock, I went—I had to go over this platform there to get down on the lot to a certain space to see a place behind these box cars, and here is the platform and there is the car track, and that went off a little step here; and I had to see behind these cars, and I went through this little small space of 17 or 18 inches, or 20 inches, I don't know exactly, and there was stuff piled there, what they call plaster-board, I believe, little pieces, and I wanted to get over there—it was too far that I could step over—and instead of that I stepped on it, and by stepping on there I slipped down—I slipped off of that platform down below and went under that platform, and there is a kind of a gutter like there, I don't know exactly, about 18 inches wide, of a wooden gutter, I might say; the bottom is wood and the sides wood, too; the sides are about 6 or 8 inches, I think, and the bottom is about 18 inches, and I fell down on this one side on that board; I fell down with my arm like this (indicating), and with the other side I hit my knee, and with my face right in the middle of that gutter. * * *

"Q. About how much space was there between the lumber pile and the edge of the platform? A. About 18 inches space.

"Q. Now, what did you say it was that you stepped on there; this material that was on this platform on this 18-inch space? A. It was plaster-board; that is, what they call plaster-board; plaster.

"Q. Now, about how thick was that plaster or mortar, or whatever it was, that was piled up there on that platform? A. About six or seven inches high; that is to the best of my knowledge; I could not say exactly; I never measured it, but that was about it.

"Q. About how wide was this space of that plaster or mortar where it was piled up there? A. Well, say about two feet or so; I could not step over it, I know; otherwise, I could not explain it.

"Q. How long before you fell off of the platform had it been since you had gone over that same platform space before? A. About twenty-four hours, the morning before.

"Q. What was the condition of that platform at that time? A. Well, there was not anything that hindered me to walk over there. There wasn't anything there to step over; a little stuff lying there, like anything; not worth while mentioning; but that did not hinder me to go over it.

"Q. Was there any of this plaster-board at all there; when you say little stuff—what do you mean by little stuff? A. Yes; there was little pieces; you find that once in a while there.

"Q. Were they interfering with your walking over in there? A. No, sir. "Q. About how often, ordinarily, during the course of the night, would you walk along this 18-inch space on the platform? A. Sometimes three, sometimes two, sometimes one time.

"Q. State whether or not, or in what condition this 18-inch space was ordinarily kept; whether...